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.
Andrews Warnes of Home Affairs tried to argue that in fact the threshold for accessing data for all Australians had been “lifted up” to the same level of protection as that afforded journalists.
“Now all requests for metadata have to be done under this regime at a higher level of authorisation, when they’ll go to an independent authoriser, so actually those protections in terms of the authorisation remains the same as in the JIWs, they’ll have to be authorised by independent persons, either a judge or the AAT member.”
What Warnes failed to note is that a former Coalition MP or staffer sitting in the Security Division of the AAT offers nothing like the same kind of independent authorisation as a judge — especially when many of the Coalition’s appointees to the AAT don’t have law degrees or legal experience.
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.
The Journalist Information Warrant process can be circumvented by agencies, but it involves obtaining the metadata of a large number of people who are suspected of sending information to a journalist. And the AFP have struggled with its requirements. In 2017, the AFP admitted that one of its officers had illegally accessed a journalist’s metadata without undertaking the approval process.
It is unclear whether the omission by Home Affairs was deliberate or an oversight. But as Dreyfus noted, the omission was pointed out by the inspector-general of intelligence and security, with whom Home Affairs consulted — and apparently ignored — on the bill last year.
The AFP also gave evidence at yesterday’s hearing. Dreyfus asked the AFP if it was possible that ABC journalists Dan Oakes and Sam Clark, and News Corp’s Annika Smethurst, could still be charged after police raided the ABC and Smethurst’s home in the wake of stories that embarrassed the government. “That matter is still under consideration,” the AFP replied about all three cases.
The AFP, of course, took only a couple of days to decide it couldn’t possibly charge anyone over a blatantly forged document used for political purposes by a Coalition minister, but after many months has yet to decide whether it will pursue journalists for providing excellent public interest journalism that just so happened to embarrass the government and Home Affairs bureaucrats.
Up against such government goons, journalists need all the protections they can get.
How can such an undereducated, barely trained, uncivilised, shambling oaf as Peter Duckwit -Futton, our own sublevel version of Heydrich, be allowed to walk over areas of public, important civil liberties? The man cannot handle fundamentals and made us international laughing stock (check it out with foreign friends) over the Ruby Princess disaster. This government seems to inflate its pomposity without check or reflection, but it is a candidate for the shittiest nest of nohopers since 1901. As so many are superstitious fools, drenched in righteous rubbish, and, live in a world that never existed, they are impelled by perverted instinct to create rules, attitudes, ideas of social filth. We cannot reman free in a fascist fantasy world dominated by fraudsters.
Great work, Dreyfus and Crikey !
This new creep on surveillance is a creep against all citizens, not only against journalists. And how will this be used? As the Collaery case illustrates, it will seek to make it a crime to report a crime.
Yes, Bernard, while failing to pursue forgery seeking political gain. While failing to pursue corruption in the SportsRorts. While failing to pursue those who illegally authorised the bugging of the Timor Cabinet.
This government has misjudged the unrest arising from its surveillance practices. I am reminded of the greatest folly of the British government when it authorised search and seizure of Americans in 1765, seeking to enforce corrupt taxes (the Stamp Act). The rebellion cost Britain its American colony.
The great Aussie Ozzie Ostrich unrest ? You’d get a bigger stampede for a Myer’s Boxing Day sale, if i’m not misjudged of poor fella my country.
This is their phones and emails the Feds want to bug and to share with like-minded cronies.
In lockdown and social distancing, our phones and emails are much more important.
The 1765 Stamp Act taxed Americans for every piece of paper. Without warrant (for the first time), British soldiers could raid citizens in search of paper not Stamped by Britain. See the parallels?
Even Ozzie Ostrich needs his phone now.
My wholehearted agreement, CEOfaim. What has happened to the once-famed independent spirit of Australians? Mark Dreyfus is an honourable and brave politician (almost an oxymoron these days) and it is good that he airs these matters but he needs our support to be trulky effective against the forces of darkness like Dutton and Morrison.
“like-minded countries”? China and Russia?
Does that quote come from the Minister’s speech on reading the Bill?
Yes, it is spectacularly vague. ‘Whoever last bought us lunch’? And we are apparently expected to trust the discretion exercised by those who judge “like-minded”? Thank you Klewso.
Aaaah,
“Like-minded” was used in Washington twelve hours earlier.
Guess the context?
Blundering out of the war we blundered into.
https://www.washingtonpost.com/outlook/2020/05/14/there-is-no-plan-b-there-is-only-war/
And as for “Up against such government goons, journalists need all the protections they can get” : what about us poor schmucks, down here away from such rarefied air, when those same goons judge one of us has done something they don’t like?
Hungary & Turkey even.
Next time ‘we’ get hacked, if that hacker is “like-minded”, it won’t matter?
… “Couldn’t meet ‘our’ price”?
Thank goodness for Mark Dreyfus- experienced, intelligent and articulate. It’s hard not to wonder whether Dutton is just way out of his depth. Does he understand the full implications of this legislation? There is ideology behind it, but is there also simple ignorance? Dutton has been busy building a super Ministry and didn’t even manage to stop the most dangerous boat…..he’s just not up to the job.
He sees his “job” as reinforcing and expanding the reach and power of the plutocratic autocrisy.
Masters and serfs with no intermediate classes.
Dutton is still just a policeman but now he can make the laws to get all those crooks he couldn’t get at when he had to find proof beyond reasonable doubt.
He never did have to “find proof beyond reasonable doubt”. Firstly, he joined the force in Joh’s police state, run by some of the most evil Queenslanders ever and second, he never reached the seniority that required doing anything with evidence. Although now power hungry, he is still the archetypal ex constable Plod.
J B-P was ousted in 1987.
Dutton graduated from the Queensland Police Academy in 1990. He was a Queensland Police officer for nine years, working in the Drug Squad in Brisbane in the early 1990s.[7][8] He also worked in the Sex Offenders Squad and the National Crime Authority.[9] As a second job, he worked with his father in a building business.[5]
In 1999, Dutton left the Queensland Police. Allegations were made that his departure was due to an incident of ‘misconduct’.[10][11] Documentation filed in the District Court of Queensland in 2000 describes Dutton’s resignation as being prompted by a loss of driving confidence resulting from an incident on 4 August 1998. Dutton was driving an unmarked Mazda 626 during a covert surveillance operation. Dutton rolled his car while in pursuit of an escaped prisoner who was driving erratically. Dutton also suffered numerous physical injuries during the accident, was hospitalised briefly and bedridden for a week. Dutton had sought damages of $250,000 from the escaped prisoner’s insurance company but dropped the claim in 2005.[12]
He went on to become a businessman
Dutton is Pezzullo’s puppet.
Well, George Orwell in his novel 1984 has warned us.
But hey! That’s literature innit.
Altogether too high falutin’ and elitist for ordinary folk.
There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live–did live, from habit that became instinct–in the assumption that every sound you made was overheard, and, except in darkness, every moment scrutinized”
George Orwell – 1984