|
senate vote 2015-03-26#11
Edited by
Luke Bacon
on
2015-03-30 15:01:24
|
Title
Description
<p class="speaker">Deborah O'Neill</p><p>The next amendments are Senator Xenophon's amendments (10) to (12) on sheet 7672.</p> <p class="speaker">Nick Xenophon</p>- This division was for whether or not to accept [Nick Xenophon’s](https://theyvoteforyou.org.au/people/senate/sa/nick_xenophon) motion to amend the [Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/r5375). [Xenophon summarised the amendment in Parliament](http://www.openaustralia.org.au/senate/?gid=2015-03-26.236.1):
- > This amendment addresses issues relating to disclosures of information by journalists, through amendments to the Australian Security Intelligence Organisation Act 1979, the Crimes Act 1914 and the Criminal Code Act 1995. These amendments address changes to these acts made by the previous bills in this tranche of legislation, primarily the National Security Legislation Amendment Act (No. 1) 2014.
- >
- > Make no mistake about it, these issues go to the heart of press freedom in this country in relation to the ability of investigative journalists to do their work. These bills insert into these acts new offences relating to the disclosure of information relating to a special intelligence operation, as well as for publishing advertisements or items of news that contain information about recruitment of people to armed forces in a foreign country. I want to make it clear that, in relation to any publication of information in respect of a special intelligence operation that could endanger the lives of those involved in the operation or other lives directly as a result of that disclosure of information, I do not oppose the imposition of a penalty. If we are talking about endangering lives—if, for instance, there is an ASIS or ASIO officer whose life is put in real danger by the disclosure of their identity—then that is a serious matter. But we are talking about a whole range of other circumstances where there can be no such consideration; where there is no question of any lives being endangered; and where, in fact, what is being endangered by not publishing that information is very much the public interest and some key democratic principles.
- >
- > At the time that the bills were being considered in respect of section 35P, I expressed my concerns about the provisions relating to disclosure of information and how this would impact on journalists reporting on matters in good faith and in the public interest. At the time, I also moved an amendment to include the consideration of the public interest as a defence to these offences. This amendment expands on these original concerns to address the matter more fully. I am grateful to the mainstream media organisations that I have spoken to—major media organisations which have been very helpful with useful suggestions as to how this clause could have real protections for journalists who are doing their job in the public interest.
- >
- > Firstly, in relation to disclosure of information, these amendments introduce a concept of 'knowingly disclosing information relating to a special intelligence operation, disclosing information with the intent of endangering the health or safety of any person, or prejudicing the effective conduct of a special intelligence operation'. Further, the amendments provide exceptions to this offence which are consistent with existing whistleblower protections. They also include an exception where the person was working in a professional capacity as a journalist and published in good faith as a matter of public interest, and where the report was not likely to enable staff of security organisations to be identified.
- >
- > The amendments also provide an extensive definition of what matters can be considered to be in the public interest. These include matters that increase public debate and promote the integrity and accountability of security organisations or officials, and matters relating to conduct that contravenes certain laws or standards. These amendments provide the same defences in relation to disclosing information about delayed notification search warrants under the Crimes Act.
- >
- > The amendments also address issues relating to the publication of certain matters under the Criminal Code. The new offences in the act relate to the publication of recruitment material, and, in essence, I believe these offences are suitable
- >
- > However, there is capacity for these offences to capture media organisations in the following ways. Firstly, it is possible that a journalist could publish a story that contains information about recruitment—for example, an investigative piece that looks at recruitment strategies of terrorist groups or how an individual has been personally affected by this. Secondly, it is possible that a major news organisation with many publications could unwittingly publish an advertisement that, while it does not overtly seem so, relates to recruiting activities—for example, for a town meeting that turns out to have recruiting elements, unbeknownst to the news organisation.
- >
- > To address these concerns, the amendments in this item change the existing offence from a person being reckless to the fact to a person publishing with the intention of encouraging recruitment. Further, in relation to the offence of publishing more detailed information about recruiting, these amendments provide that the offence can only apply where the publication is not in the public interest. This would, for example, come into effect when a story is published about recruitment taking place at a certain location and time for the purpose of raising public awareness.
- >
- > I want to briefly raise a matter that relates to ASIS, not ASIO, but the principles are the same. There is, of course, the issue in respect of the allegations that ASIS planted electronic surveillance, electronic bugs, in 2004 in the East Timorese cabinet room, allegedly to gather information regarding negotiations of the Timor Sea treaty, the sharing of energy resources between Australia and Timor. That cannot be seen, on any reasonable basis, as a national security issue. In March 2014 the International Court of Justice ordered Australia to stop any such behaviour. Bernard Collaery, a former Attorney-General of the Australian Capital Territory, representing East Timor, alleged in 2013 that his offices had been raided by ASIO. A key witness, known as Witness K, was detained and had his passport cancelled, which of course has all sorts of consequences for Witness K. I am not sure whether he has been charged.
- >
- > My concern is with cases such as that, cases of botched operations, and it does happen from time to time. As good as our intelligence agencies are, as good as the AFP is, there are occasions when they get it wrong, where they have exceeded their powers, and it is in the public interest to expose that. There is no protection for journalists, as I see it, under the current legislation or 35P. We know what the Media, Entertainment and Arts Alliance, representing journalists in this country, have said about this. And leading academics are concerned that section 35P in its current form is simply too restrictive and draconian and needs to be amended.
<p>by leave—I move amendments (10) to (12) on sheet 7672 together:</p><p class="italic">(10) Schedule 1, item 6V, page 46 (lines 13 to 31), omit section 182A, substitute:</p><p class="italic">182A Disclosure/use offences: journalist information warrants</p><p class="italic">(1) A person commits an offence if:</p><p class="italic">  (a) the person discloses or uses information; and</p><p class="italic">  (b) the information is about any of the following:</p><p class="italic">     (i) whether a journalist information warrant (other than such a warrant that relates only to section 178A) has been, or is being, requested or applied for;</p><p class="italic">     (ii) the making of such a warrant;</p><p class="italic">     (iii) the existence or non-existence of such a warrant;</p><p class="italic">     (iv) the revocation of such a warrant; and</p><p class="italic">  (c) the person knows that the information is about a warrant as set out in paragraph (b); and</p><p class="italic">  (d) at the time of the disclosure or use, the matter to which the warrant relates is ongoing.</p><p class="italic">Penalty:   Imprisonment for 2 years.</p><p class="italic">(2) A person commits an offence if:</p><p class="italic">  (a) the person discloses or uses a document; and</p><p class="italic">  (b) the document consists (wholly or partly) of any of the following:</p><p class="italic">     (i) a journalist information warrant (other than such a warrant that relates only to section 178A);</p><p class="italic">     (ii) the revocation of such a warrant; and</p><p class="italic">  (c) the person knows that the document consists (wholly or partly) of the warrant or the revocation of the warrant; and</p><p class="italic">  (d) at the time of the disclosure or use, the matter to which the warrant relates is ongoing.</p><p class="italic">Penalty:   Imprisonment for 2 years.</p><p class="italic">(11) Schedule 1, item 6V, page 47 (before line 4), before paragraph 182B(a), insert:</p><p class="italic">  (aa) both:</p><p class="italic">     (i) the disclosure or use is by a person working in a professional capacity as a journalist; and</p><p class="italic">     (ii) the information or document is disclosed or used in that capacity for the purpose of disseminating information on a matter of public interest; or</p><p class="italic">(12) Schedule 1, item 6X, page 48 (before line 1), before section 185D, insert:</p><p class="italic">185CA Evidentiary certificate relating to ongoing Ombudsman matter</p><p class="italic">(1) The Director-General of Security or the Deputy Director-General of Security may issue a written certificate signed by him or her setting out:</p><p class="italic">  (a) whether a matter involving the grounds on which a journalist information warrant was issued is ongoing; and</p><p class="italic">  (b) whether the matter was ongoing on a specified date.</p><p class="italic">(2) A document purporting to be a certificate issued under subsection (1) by the Director-General of Security or the Deputy Director-General of Security and to be signed by him or her:</p><p class="italic">  (a) is to be received in evidence in an exempt proceeding without further proof; and</p><p class="italic">  (b) is, in an exempt proceeding, prima facie evidence of the matters stated in the document.</p><p class="italic">Note: An evidentiary certificate issued under this section relates to an offence under section 182A.</p><p class="italic">185CB Evidentiary certificate relating to ongoing enforcement agency matter</p><p class="italic">(1) A certifying offer of an enforcement agency may issue a written certificate signed by him or her setting out:</p><p class="italic">  (a) whether a matter involving the grounds on which a journalist information warrant was issued is ongoing; and</p><p class="italic">  (b) whether the matter was ongoing on a specified date.</p><p class="italic">(2) A document purporting to be a certificate issued under subsection (1) by a certifying officer of an enforcement agency and to be signed by him or her:</p><p class="italic">  (a) is to be received in evidence in an exempt proceeding without further proof; and</p><p class="italic">  (b) is, in an exempt proceeding, prima facie evidence of the matters stated in the document.</p><p class="italic">Note: An evidentiary certificate issued under this section relates to an offence under section 182A.</p><p>Amendment (10) amends the offences in the bill related to the disclosure and use of journalist information warrants. This amendment limits the offence to ensure it only applies when a person knows that the information disclosed or used relates to a journalist information warrant and that the matter to which the warrant relates is ongoing. The aim of this amendment is to ensure openness and transparency and, in practical terms, to allow reporting on matters that may, in the past, have related to journalist protection warrants. While acknowledging that such an offence provision may be necessary to protect ongoing investigations, these amendments prevent the offence from becoming a barrier to sharing information in the public interest.</p><p>Amendment (11) seeks to clarify the defences available to someone charged with the disclosure or use of information relating to journalist information warrants. It provides that disclosure or use by a journalist for the purpose of disseminating information in the public interest is a defence. In conjunction with the amendments in amendment (10), this amendment will ensure that journalists are free to report on matters of public interest even if they are the subject of a journalist information warrant.</p><p>Amendment (12) allows the Director-General of Security or Deputy Director-General of Security to provide evidentiary certificates relating to whether a matter involving the grounds on which a journalist information warrant was issued is ongoing and whether the matter specified was ongoing on a particular day. These provisions are consistent with others in the act relating to the issuing of evidentiary certificates. Under the same conditions, a certifying officer of an enforcement agency may issue a written certificate relating to the same matters. Again, this is consistent with existing provisions for the use of evidentiary certificates in the act.</p> <p class="speaker">George Brandis</p><p>The government does not support these amendments. Section 102A makes it an offence for a person to use or disclose information about a journalist information warrant. The offence is punishable by two years imprisonment. Pursuant to section 5.6 of the Criminal Code, this offence will be committed where a person uses or discloses information and is reckless as to whether that information is about a journalist information warrant. Amendment (10) would make disclosure an offence only where the person who discloses the warrant knows that the information is about a journalist information warrant relating to an ongoing matter. The offence provisions serve the dual purpose of ensuring the security and integrity of investigations are maintained against unlawful disclosure and protecting the reputation and privacy of subjects of investigations.</p><p>Prohibitions on use and disclosure exist so that any private information, even the mere fact that a person has come to the police's attention, is not incidentally used to embarrass, humiliate or harass the person. Given the sensitive nature of TIA Act powers, for those prohibitions to be meaningful they must be backed up by criminal penalties. The media cannot have it both ways. They have sought protections relating to the identification of their sources, yet they are looking to be able to disclose the information about the target of the warrant—that is, the source. The offence provision is consistent with those already in place in relation to other warrants, including telecommunications interception warrants and stored communications warrants. These offences exist in both Commonwealth and state legislation, including relating to surveillance device warrants. They create a need to know within an agency to protect the privacy of the person who is the subject of the warrant.</p> <p class="speaker">Jacinta Collins</p><p>) ( ): I could refer to my earlier comments, Senator Xenophon, but I will add an additional point on these amendments—especially for your staff. The provisions regarding unauthorised disclosure that a warrant has been sought are standard in warrant schemes. I think I can elaborate on Senator Brandis's comments that the explanatory memorandum sets out the rationale for these provisions. Let me read those:</p><p class="italic">153. Section 182A makes it an offence for a person to use or disclose information about whether a journalist information warrant, has been, or is being requested or applied for, the making of such warrant, the existence or non-existence of such a warrant and the revocation of such a warrant. The maximum penalty for this offence is 2 years imprisonment. Section 182A is consistent with equivalent offence provisions already in place in relation to other warrants, including telecommunications interception warrants and stored communications warrants. These provisions create a "need-to-know" within an agency to protect the privacy of the person who is the subject of a TIA Act warrant.</p> <p class="speaker">Scott Ludlam</p><p>The Australian Greens will be supporting this amendment for the reasons outlined briefly by Senator Xenophon.</p> <p class="speaker">Nick Xenophon</p><p>I thank the government and the opposition for their response, but let us put this into perspective. If a journalist discloses after the fact, when, as set out in this amendment, it is clearly in the public interest, that there has been a journalist information warrant sought or obtained—when there is no longer any issue about it being detrimental to the work of the security agency or the authorities but is in fact actually in the public interest—that would still be a criminal offence. How, from a public policy point of view, can that be desirable? There is a threshold in this amendment that says it must be in the public interest for a journalist to disclose that there was a warrant issued.</p><p>It might be five years down the track or 10 years down the track. Does that mean forever and a day that this will be secret? Does this mean that in 10 years' time, 20 years' time, 30 years' time or 40 years' time, if this bill is in its current form, that journalists will not be able to ever report that a warrant was sought for their metadata even when the exigency or the need for the warrant is no longer apparent and it is also positively in the public interest to disclose that? That is what disturbs me: that fact that we could end up seeing journalists being jailed for disclosing something that would be clearly in the public interest.</p> <p class="speaker">Deborah O'Neill</p><p>The question is that amendments moved by Senator Xenophon be agreed to.</p><p>Question negatived.</p> <p class="speaker">David Leyonhjelm</p><p>I withdraw amendment (26) on sheet 7661.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
|