Friday, 4 March 2016

Australian Parliamentary Joint Committee on Human Rights still not happy with the Telecommunications (Interception and Access) Amendment (Public Interest Advocates and Other Matters)

Excerpts from Australian Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 25 February 2016:

2.33 Accessing telecommunications data relating to a journalist, or their employer, where the purpose is to identify a journalist's source, together with the journalist information warrant and PIA scheme, engages and may limit multiple rights, including:

* right to an effective remedy;
* right to a fair hearing;
* right to privacy; and
* right to freedom of expression.

2.35 The committee considered that the journalist information warrant and PIA schemes seek to better promote the protection of privacy and the right to freedom of expression by prescribing a warrant process for accessing journalists' information, but that the regulation may lack sufficient safeguards to appropriately protect these rights, as well as the right to an effective remedy and a fair hearing. In particular:

* the regulation does not enable the PIA to seek instructions from any person affected by the journalist information warrant;
* the regulation grants the minister discretion to provide the PIA with only a summary of further information provided to the minister or issuing authority relating to proposed journalist information warrant requests or applications, despite the intention of the regulation being to ensure PIAs are able to advocate in the public interest; and
* the regulation provides no procedural guarantees to ensure the PIA is able to make a submission on an application for a journalist information warrant prior to the issuance of a warrant.

2.38 The committee thanks the Attorney-General for his response. 2.39 The committee acknowledges that the regulations introduce additional safeguards relating to the issuing of journalist information warrants under the Act and welcomes the commitment of the Attorney-General to fulfilling Australia's obligations under international human rights law.

2.40 The committee accepts that the PIA scheme forms an important safeguard in connection with applications for a journalist information warrant. However, the committee retains some concerns with the arrangement. Notification to journalist of a proposed request or application 2.41 The Attorney-General notes that it is appropriate that a PIA is unable to seek instructions from any person affected by the journalist information warrant because applications for a warrant are interim proceedings, ordinarily conducted on an ex parte basis. This is correct. However, it is unclear how a PIA will be able to effectively represent the interests of a person subject to the warrant in these circumstances, or provide information that will relevantly weigh on the issuing authority's determination as to whether to grant a warrant.

2.42 The Attorney-General justifies this measure by noting that a party who is given advance knowledge of the application may flee a jurisdiction, dispose of physical evidence, or alter or cease certain activities, so as to frustrate the investigation. These are legitimate concerns. However, the regulation includes a blanket prohibition on the PIA contacting any person affected by the journalist information warrant. Accordingly, there is no ability for the court to weigh up the risks and determine whether, in the circumstances of the particular warrant, it is necessary and appropriate for the PIA not to have contact with any person affected in order to protect national security and community safety. Indeed, even were a court to consider it was necessary or desirable for the PIA to seek instructions in any regard from an affected person, the court is unable to order or allow that to occur.

Australian Parliamentary Joint Committee on Human Rights, Members:
The Hon Philip Ruddock MP, Chair Berowra, New South Wales, LP Mr Laurie Ferguson MP, Deputy Chair Werriwa, New South Wales, ALP Senator Carol Brown Tasmania, ALP Dr David Gillespie MP Lyne, New South Wales, NAT Ms Cathy McGowan AO MP Indi, Victoria, IND Senator Nick McKim Tasmania, AG Senator Claire Moore Queensland, ALP Senator Dean Smith Western Australia, LP Senator Barry O'Sullivan Queensland, NAT Mr Michael Sukkar MP Deakin, Victoria, LP


The Sydney Morning Herald, 24 January 2016:

Lawyers with no background in representing journalists have been tasked with defending journalists' sources in a secretive warrant process under new data retention laws, documents obtained under freedom of information laws reveal.

The documents show that a month into the job, Prime Minister Malcolm Turnbull wrote to retired judges Kevin Duggan and John Muir, appointing them as "public interest advocates". Although they are the only people able to argue against police requests for journalists' communications data in order to identify of a source, neither specialised in representing journalists or in media law.

The public interest advocate role was created under a last-minute amendment to the data retention legislation, meant to protect journalists and their sources from government access to their communications data.

Under the deal struck between the Coalition and the ALP, government agencies need a warrant before getting phone and internet data which would identify a journalist's source. But journalists are not notified that a warrant application has been made, and cannot argue against it. Instead, government-appointed public interest advocates are meant to make arguments about whether the public interest in the disclosure of the journalist's source outweighs the public interest in protecting source confidentiality.

Journalists face two years in jail if they reveal that a warrant has been sought. Justice Duggan is a criminal law specialist, who mostly presided over criminal trials during his 23 years on the South Australian Supreme Court. Justice Muir sat on the Queensland Supreme Court for 17 years.

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