Crikey,
15 May 2020:
The
government’s proposed scheme to enable foreign intelligence
services to spy on Australians will enable Australia’s intelligence
agencies to circumvent measures designed to protect journalists from
unfettered pursuit of their sources.
Labor’s
Mark Dreyfus yesterday exposed the loophole, with Home Affairs
officials left unable and unwilling to explain why their minister
Peter Dutton was proposing a runaround on existing procedures
designed to protect journalists’ sources.
The
Telecommunications Legislation Amendment (International Production
Orders) Bill 2020 will to pave the way for agreements between
Australia and the United States, and other “like-minded countries”,
for the direct accessing of surveillance information, including
real-time wiretapping, by intelligence agencies from both counterpart
countries. In Australia, such requests would be signed off by members
of the Security Division of the Administrative Appeals Tribunal
(AAT), which is heavily stacked with former Coalition MPs and
staffers.
In
hearings before the intelligence and security committee yesterday,
shadow attorney-general Dreyfus asked Dutton’s bureaucrats why
existing protections around accessing the metadata of journalists
were not part of the proposed process.
When
the Abbott government introduced mass surveillance laws in 2015, the
mainstream media belatedly realised that journalists’ phone and IT
records would be easily accessed by intelligence and law enforcement
agencies under “data retention” laws. In response, a “Journalist
Information Warrant” (JIW) process was hastily put together that
would require agencies to apply for a special warrant, with more
stringent thresholds and procedural safeguards, like a Public
Interest Advocate, if agencies wanted to obtain data relating to a
journalist’s sources.
No
such safeguard exists under the International Production Orders (IPO)
process, meaning that if a journalist’s data was held by a US
company — such as Google, Apple, Facebook or Microsoft — it could
be obtained by ASIO or the Australian Federal Police (AFP) from those
companies through an IPO without a Journalist Information Warrant,
unlike information held by a local company such as Telstra.
“Are
you able to tell us why an Australian journalists whose telecoms data
is held by a US carrier should have fewer protections than an
Australian journalist whose telecoms data is held in Australia?”
Dreyfus asked Home Affairs bureaucrats…..
Dreyfus
pressed further. The Journalist Information Warrant process was not
replicated in this bill, was it, he asked.
“It
is not replicated,” Warnes had to admit, before insisting an AAT
authorisation was enough protection.
Dreyfus
went further. “The Journalist Information Warrant process has a
public interests monitor provided. There is no such public interest
monitor provided in the authorisation process that is provided under
this bill is there?”
“That’s
correct,” the bureaucrat admitted.
“So
it’s not the same level of protection for journalists whose data is
held by a US carrier. It’s a lesser level of protection isn’t
it?” said Dreyfus.
“Different
considerations at play, yes,” Warnes , humiliated, had to admit.
Dreyfus
also pointed out that the Journalist Information Warrant process had
additional criteria that had to be considered in granting warrants.
They weren’t in the IPO scheme, were they?
“That’s
correct,” Warnes said.
“So
why should an Australian journalist whose telecoms data is held by a
US carrier have fewer protections than an Australian journalist whose
telecoms data is held in Australia?”
“I
don’t have anything further to add,” Warnes said.
Dreyfus
told him to come back to the committee with a better explanation for
why the loophole was being pursued by the government…..
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