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Issue #1787      July 26, 2017

One-stop shop for oppression

The Media, Entertainment & Arts Alliance (MEAA), the union and industry advocate for Australia’s journalists, is deeply concerned by the concentration of surveillance powers in a new super “Home Affairs” ministry without any adequate external oversight.

The MEAA believes the corralling of several government agencies with poor records for observing and respecting press freedom and transparency into one giant bureaucracy, raises profound concerns.

MEAA chief executive officer Paul Murphy said that the announcement of a super ministry is “deeply troubling” for press freedom in Australia, coming as it does on the back of the announcement on encryption, the government’s appetite for discovering all manner of inconvenient information including that which is plainly in the public interest, shows no sign of being whetted.

“The new Home Affairs ministry doesn’t even appear to have the support of a range of national security specialists and key members of the Cabinet,” noted Murphy. “Their concerns have been overridden in the interests of creating a one-stop shop for oppression of public discourse.

“We now have a situation where the militarised Australian Border Force, with its extreme powers to imprison whistle-blowers now sits alongside ASIO, with its ability to imprison journalists and their sources for up to 10 years. These two agencies will now sit together with the Australian Federal Police which in April admitted it had illegally accessed a journalist’s telecommunications data without a warrant,” Murphy said (see MEAA statement below).

“It seems the only law reform the government is interested in is re-doubling its efforts to punish those who dare speak out in the public interest. The government seeks utter transparency from its citizens, but is not prepared to demonstrate some if its own,” he said.

The MEAA’s annual reports into the state of press freedom in Australia have catalogued the numerous attacks and threats against journalists and their sources by Australian governments since 2001.

“There is completely inadequate oversight of our security agencies. The previous Independent National Security Legislation Monitor (INSLM) resigned less than two years into the three-year position, citing an ongoing lack of resources. It’s unclear when the new Monitor will be able to take up the post or whether the resources available to the Monitor will improve.

“There is real concern that government agencies could once again misuse their powers to go after whistle-blowers, to go after journalism. There will be appalling consequences if extreme powers such as those being sought are again misused to persecute journalists and their sources.”

Statement

MEAA is appalled at the revelation an Australian Federal Police officer has been able to access a journalist’s telecommunications data without being granted the necessary Journalists Information Warrant.

MEAA has campaigned strongly against the ability of government agencies to access journalists’ and media companies’ telecommunications data in order to hunt down and identify confidential sources.

Despite all of the requirements put in place before a Journalist Information Warrant can be granted, the system has failed. This is an attack on press freedom. It demonstrates that there is very little understanding of the press freedom concerns that we have been raising with politicians and law enforcement officials for several years now.

The use of journalists’ metadata to identify confidential sources is an attempt to go after whistle-blowers ... This latest example shows that an over-zealous and cavalier approach to individuals’ metadata is undermining the right to privacy and the right of journalists to work with their confidential sources.

Background

On Thursday April 13, 2017, all telecommunications companies were required to retain the metadata for two years. The regime is a particular concern for journalists who are ethically obliged to protect the identity of confidential sources. MEAA’s Journalist Code of Ethics requires confidences to be respected in all circumstances.

The new regime secretly circumvents these ethical obligations and allows 21 government agencies to identify and pursue a journalist’s sources (without the journalist’s knowledge); including whistle-blowers who seek to expose instances of fraud, dishonesty, corruption and threats to public health and safety. On February 28, 2017 the Director-General of ASIO told a Senate Estimates hearing that ASIO had been granted “a small number” of Journalist Information Warrants.

MEAA and media organisations have repeatedly warned politicians of the threat to press freedom in these laws. At the last minute, parliament created a so-called “safeguard” – the Journalist Information Warrant scheme and, as part of the scheme, a new office was created: Public Interest Advocate. However, the scheme is no safeguard at all; it is merely cosmetic dressing that demonstrates a failure to understand or deal with the press freedom threat contained in the legislation:

  • The Journalist Information Warrant scheme was introduced without consultation.
  • It operates entirely in secret with the threat of a two-year jail term for reporting the existence of a Journalist Information Warrant.
  • Public Interest Advocates will be appointed by the Prime Minister. Advocates will not even represent the specific interests of journalists and media groups who must protect the confidentiality of sources.
  • There is no reporting or monitoring of how the warrants will operate.
  • Journalists and media organisations will never know how much of their data has been accessed nor how many sources and news stories have been compromised.

Access all areas

The new scheme, for the most part, is warrantless (the exception is the Journalist Information Warrants). Access is currently limited to 21 government agencies but this can be expanded. This is what they can get access to:

  • Your account details.
  • Phone: the phone number of the call or SMS; the time and date of those communications; the duration of the calls; your location, and the device and/or mobile tower used to send or receive the call or SMS.
  • Internet: the time, date, sender and recipient of your emails; the device used; the duration of your connection; your IP address; possibly the destination IP address (if your carrier retains that information); your upload and download volumes; your location.

Journalist Information Warrants will be required if a government agency wants to access a journalist’s telecommunications data or their employer’s telecommunications data for the express purpose of identifying a journalist’s source.

The 21 government agencies include the anti-corruption bodies that already have star-chamber powers, as well as Border Force, the Australian Securities and Investments Commission and the Australian Crime Commission, and state and federal law police forces. ASIO does not have to front a court or tribunal; it can apply for a Journalist Information Warrant directly to the attorney-general.

A journalist can never challenge a Journalist Information Warrant. Everything about Journalist Information Warrants is secret. Even if someone should discover a warrant has been issued, reporting its existence will result in two years jail.

In short, journalists and their media employers will never know if a warrant has been sought for their telecommunications data and will never know if a warrant has been granted or refused or how many of their news stories and their confidential sources’ identities have been compromised.

Next article – Editorial – Australia’s maleficent role in East Timor

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