Malcolm Turnbull (Wentworth, Liberal Party, Minister for Communications) Share this | Hansard source

This is very important legislation. This has been given very detailed consideration over a considerable time. The amendments we are discussing, as the honourable member for Isaacs has observed and as I have noted, do faithfully implement the recommendations of the committee. I commend these amendments to the House.

Question agreed to.

by leave—I move government amendments (42) to (48):

(42) Schedule 1, page 17 (after line 2), at the end of Part 2, add:

6A After section 6DB

  Insert:

6DC Part 4 -1 issuing authorities

(1) The Minister may, by writing, appoint as a Part 4-1 issuing authority:

  (a) a person who is:

     (i) a judge of a court created by the Parliament; or

     (iii) a magistrate;

     and in relation to whom a consent under subsection (2) is in force; or

(b) a person who:

     (i) holds an appointment to the Administrative Appeals Tribunal as Deputy President, full-time senior member, part-time senior member or member; and

     (ii) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or a Territory; and

     (iii) has been enrolled for at least 5 years.

(2) A person who is:

  (a) a judge of a court created by the Parliament; or

  (b) a magistrate;

may, by writing, consent to be appointed by the Minister under subsection (1).

(3) A person's appointment ceases to have effect if:

  (a) the person ceases to be a person whom the Minister could appoint under this section; or

  (b) the Minister, by writing, revokes the appointment.

(4) A Part 4-1 issuing authority has, in relation to the performance or exercise of a function or power conferred on a Part 4-1 issuing authority by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

(43) Schedule 1, page 17 (after proposed item 6A), at the end of Part 2, add:

6B Section 64 (heading)

  Repeal the heading, substitute:

64 Dealing in connection with Organisation ' s or Inspector -General ' s functions

6C Subsection 64(1)

  After "its functions", insert "or the performance by the Inspector-General of Intelligence and Security of his or her functions".

6D Subsection 64(2)

  Repeal the subsection, substitute:

(2) A person, being the Director-General of Security or an ASIO employee, ASIO affiliate or IGIS official, may:

  (a) in connection with the performance by the Organisation of its functions; or

  (b) in connection with the performance by the Inspector-General of Intelligence and Security of his or her functions;

communicate to another such person, make use of, or make a record of, foreign intelligence information.

(44) Schedule 1, page 17 (after proposed item 6D), at the end of Part 2, add:

6E Paragraph 176(5)(b)

  Repeal the paragraph, substitute:

  (b) unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that:

     (i) is no later than the end of the period of 90 days beginning on the day the authorisation is made; and

     (ii) if the authorisation is made under a journalist information warrant—is no later than the end of the period specified under section 180N as the period for which the warrant is to remain in force.

6F Subsection 176(6)

  Repeal the subsection, substitute:

Revoking the authorisation

(6) An eligible person must revoke the authorisation if:

  (a) he or she is satisfied that the disclosure is no longer required; or

  (b) in a case where the authorisation is made under a journalist information warrant:

     (i) the warrant is revoked under subsection 180N(1); or

     (ii) the Director-General of Security has informed the Minister under section 180P that the Director-General is satisfied that the grounds on which the warrant was issued have ceased to exist.

Note: Section 184 deals with notification of authorisations.

(45) Schedule 1, page 17 (after proposed item 6F), at the end of Part 2, add:

6G Paragraph 180(6)(b)

  Repeal the paragraph, substitute:

  (b) unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that:

     (i) is no later than the end of the period of 45 days beginning on the day the authorisation is made; and

     (ii) if the authorisation is made under a journalist information warrant—is no later than the end of the period specified under subsection 180U(3) as the period for which the warrant is to remain in force.

6H Subsection 180(7)

  Repeal the subsection, substitute:

Revoking the authorisation

(7) An authorised officer of the criminal law-enforcement agency must revoke the authorisation if:

  (a) he or she is satisfied that the disclosure is no longer required; or

  (b) in a case where the authorisation is made under a journalist information warrant—the warrant is revoked under subsection 180W(1).

Note: Section 184 deals with notification of authorisations.

(46) Schedule 1, page 17 (after proposed item 6H), at the end of Part 2, add:

6J Section 180F

  Omit "have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable", substitute "be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate".

6K Before paragraph 180F(a)

  Insert:

  (aa) the gravity of any conduct in relation to which the authorisation is sought, including:

     (i) the seriousness of any offence in relation to which the authorisation is sought; and

     (ii) the seriousness of any pecuniary penalty in relation to which the authorisation is sought; and

     (iii) the seriousness of any protection of the public revenue in relation to which the authorisation is sought; and

     (iv) whether the authorisation is sought for the purposes of finding a missing person;

(47) Schedule 1, page 17 (after proposed item 6K), at the end of Part 2, add:

6L After Division 4B of Part 4 -1

  Insert:

Division 4C—Journalist information warrants

Subdivision A—The requirement for journalist information warrants

180G The Organisation

(1) An eligible person (within the meaning of subsection 175(2) or 176(2), as the case requires) must not make an authorisation under Division 3 that would authorise the disclosure of information or documents relating to a particular person if:

  (a) the eligible person knows or reasonably believes that particular person to be:

     (i) a person who is working in a professional capacity as a journalist; or

     (ii) an employer of such a person; and

(b) a purpose of making the authorisation would be to identify another person whom the eligible person knows or reasonably believes to be a source;

unless a journalist information warrant is in force in relation to that particular person.

(2) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a journalist information warrant) may be issued under this Act.

180H Enforcement agencies

(1) An authorised officer of an enforcement agency must not make an authorisation under section 178, 178A, 179 or 180 that would authorise the disclosure of information or documents relating to a particular person if:

  (a) the authorised officer knows or reasonably believes that particular person to be:

     (i) a person who is working in a professional capacity as a journalist; or

     (ii) an employer of such a person; and

(b) a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source;

unless a journalist information warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that section.

(2) An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person if:

  (a) the authorised officer knows or reasonably believes that particular person to be:

     (i) a person who is working in a professional capacity as a journalist; or

     (ii) an employer of such a person; and

(b) a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source.

(3) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a journalist information warrant) may be issued under this Act.

Subdivision B—Issuing journalist information warrants to the Organisation

180J Requesting a journalist information warrant

(1) The Director-General of Security may request the Minister to issue a journalist information warrant in relation to a particular person.

(2) The request must specify the facts and other grounds on which the Director-General considers it necessary that the warrant be issued.

180K Further information

(1) The Minister may require the Director-General of Security to give to the Minister, within the period specified in the requirement, further information in connection with a request under this Subdivision.

(2) If the Director-General breaches the requirement, the Minister may:

  (a) refuse to consider the request; or

  (b) refuse to take any action, or any further action, in relation to the request.

180L Issuing a journalist information warrant

(1) After considering a request under section 180J, the Minister must:

  (a) issue a journalist information warrant that authorises the making of authorisations under Division 3 in relation to the particular person to which the request relates; or

  (b) refuse to issue a journalist information warrant.

(2) The Minister must not issue a journalist information warrant unless the Minister is satisfied that:

  (a) the Organisation's functions would extend to the making of authorisations under Division 3 in relation to the particular person; and

  (b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to:

     (i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in the performance of the Organisation's functions; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Minister considers relevant.

(3) A journalist information warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

180M Issuing a journalist information warrant in an emergency

(1) The Director-General of Security may issue a journalist information warrant in relation to a particular person if:

  (a) a request under section 180J has been made for the issue of a journalist information warrant in relation to the particular person; and

  (b) the Minister has not, to the knowledge of the Director-General, made a decision under section 180L in relation to the request; and

(c) within the preceding period of 3 months:

     (i) the Minister has not refused to issue a journalist information warrant in relation to the particular person; and

     (ii) the Director-General has not issued such a journalist information warrant; and

(d) the Director-General is satisfied that, security will be, or is likely to be, seriously prejudiced if the access to which the request relates does not begin before a journalist information warrant can be issued and made available by the Minister; and

  (e) either:

     (i) the issuing of the warrant is authorised under subsection (3); or

     (ii) the Director-General is satisfied that none of the Ministers specified in subsection (4) is readily available or contactable.

(2) The Director-General must not issue a journalist information warrant unless the Director-General is satisfied as to the matters set out in paragraphs 180L(2)(a) and (b).

Authorisation to issue a warrant under this section

(3) A Minister specified in subsection (4) may, if he or she is satisfied as to the matters set out in paragraphs 180L(2)(a) and (b), orally give an authorisation under this subsection for the Director-General to issue the warrant under this section.

(4) The Ministers who may orally give an authorisation are:

  (a) the Minister; or

  (b) if the Director-General is satisfied that the Minister is not readily available or contactable—any of the following Ministers:

     (i) the Prime Minister;

     (ii) the Defence Minister;

     (iii) the Foreign Affairs Minister.

(5) The authorisation may specify conditions or restrictions relating to issuing the warrant.

(6) The Director-General must ensure that a written record of an authorisation given under subsection (3) is made as soon as practicable (but no later than 48 hours) after the authorisation is given.

Duration of a warrant under this section

(7) A journalist information warrant under this section must specify the period (not exceeding 48 hours) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

Copies of warrant and other documents

(8) Immediately after issuing a journalist information warrant under this section, the Director-General must give the Minister:

  (a) a copy of the warrant; and

  (b) a statement of the grounds on which the warrant was issued; and

(c) either:

     (i) a copy of the record made under subsection (6); or

     (ii) if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii)—a summary of the facts of the case justifying issuing the warrant.

(9) Within 3 business days after issuing a journalist information warrant under this section, the Director-General must give the Inspector-General of Intelligence and Security:

  (a) a copy of the warrant; and

  (b) either:

     (i) a copy of the record made under subsection (6); or

     (ii) if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii)—a summary of the facts of the case justifying issuing the warrant.

(10) Subsection (9) has effect despite subsection 185D(1).

180N Duration of a journalist information warrant

     A journalist information warrant issued under section 180L must specify the period (not exceeding 6 months) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

180P Discontinuance of authorisations before expiry of a journalist information warrant

     If, before a journalist information warrant issued under this Subdivision ceases to be in force, the Director-General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist, he or she must:

  (a) forthwith inform the Minister accordingly; and

  (b) takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued.

Subdivision C—Issuing journalist information warrants to enforcement agencies

180Q Enforcement agency may apply for a journalist information warrant

(1) An enforcement agency may apply to a Part 4-1 issuing authority for a journalist information warrant in relation to a particular person.

(2) The application must be made on the agency's behalf by:

  (a) if the agency is referred to in subsection 39(2)—a person referred to in that subsection in relation to that agency; or

  (b) otherwise:

     (i) the chief officer of the agency; or

     (ii) an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency nominated under subsection (3).

(3) The chief officer of the agency may, in writing, nominate for the purposes of subparagraph (2)(b)(ii) an office or position in the agency that is involved in the management of the agency.

(4) A nomination under subsection (3) is not a legislative instrument.

(5) The application may be made in writing or in any other form.

Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.

180R Further information

(1) The Part 4-1 issuing authority may require:

  (a) in any case—the chief officer of the agency; or

  (b) if the application is made, on the agency's behalf, by a person other than the chief officer—that other person;

to give to the Part 4-1 issuing authority, within the period and in the form specified in the requirement, further information in connection with the application.

(2) If the chief officer or other person breaches the requirement, the Part 4-1 issuing authority may:

  (a) refuse to consider the application; or

  (b) refuse to take any action, or any further action, in relation to the application.

180S Oaths and affirmations

(1) Information given to the Part 4-1 issuing authority in connection with the application must be verified on oath or affirmation.

(2) For the purposes of this section, the Part 4-1 issuing authority may:

  (a) administer an oath or affirmation; or

  (b) authorise another person to administer an oath or affirmation.

The oath or affirmation may be administered in person, or by telephone, video call, video link or audio link.

180T Issuing a journalist information warrant

(1) After considering an application under section 180Q, the Part 4-1 issuing authority must:

  (a) issue a journalist information warrant that authorises the making of authorisations under one or more of sections 178, 178A, 179 and 180 in relation to the particular person to which the application relates; or

  (b) refuse to issue a journalist information warrant.

(2) The Part 4-1 issuing authority must not issue a journalist information warrant unless the Part 4-1 issuing authority is satisfied that:

  (a) the warrant is reasonably necessary for whichever of the following purposes are applicable:

     (i) if the warrant would authorise the making of authorisations under section 178—for the enforcement of the criminal law;

     (ii) if the warrant would authorise the making of authorisations under section 178A—finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;

     (iii) if the warrant would authorise the making of authorisations under section 179—the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue;

     (iv) if the warrant would authorise the making of authorisations under section 180—the investigation of an offence of a kind referred to in subsection 180(4); and

(b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to:

     (i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in relation to that matter; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Part 4-1 issuing authority considers relevant.

180U Form and content of a journalist information warrant

(1) A journalist information warrant issued under this Subdivision must be in accordance with the prescribed form and must be signed by the Part 4-1 issuing authority who issues it.

(2) A journalist information warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

(3) A journalist information warrant issued under this Subdivision must specify, as the period for which it is to be in force, a period of up to 90 days.

(4) A Part 4-1 issuing authority must not vary a journalist information warrant issued under this Subdivision by extending the period for which it is to be in force.

(5) Neither of subsections (3) and (4) prevents the issue of a further warrant under this Act in relation to a person, in relation to which a warrant under this Act has, or warrants under this Act have, previously been issued.

180V Entry into force of a journalist information warrant

     A journalist information warrant issued under this Subdivision comes into force when it is issued.

180W Revocation of a journalist information warrant by chief officer

(1) The chief officer of an enforcement agency:

  (a) may, at any time, by signed writing, revoke a journalist information warrant issued under this Subdivision to the agency; and

  (b) must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.

(2) The chief officer of an enforcement agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.

Subdivision D—Miscellaneous

180X Public Interest Advocates

(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.

(2) A Public Interest Advocate may make submissions:

  (a) to the Minister about matters relevant to:

     (i) a decision to issue, or refuse to issue, a journalist information warrant under section 180L; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

(b) to a Part 4-1 issuing authority about matters relevant to:

     (i) a decision to issue, or refuse to issue, the warrant under section 180T; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

(3) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.

(4) A declaration under subsection (1) is not a legislative instrument.

(48) Schedule 1, page 17 (after proposed item 6L), at the end of Part 2, add:

6M After subparagraph 181A(3)(b)(i)

  Insert:

     (ia) to enable a person to comply with his or her obligations under section 185D or 185E; or

6N After paragraph 181A(3)(b)

  Insert:

  ; or (c) the disclosure is:

     (i) to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

     (ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

6P After subparagraph 181A(6)(b)(i)

  Insert:

     (ia) to enable a person to comply with his or her obligations under section 185D or 185E; or

6Q After paragraph 181A(6)(b)

  Insert:

  ; or (c) the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986.

These amendments will amend the bill to create a scheme that will require ASIO and the enforcement agencies, the police, to obtain a warrant prior to authorising the disclosure of telecommunications data to identify a journalist's source. The new warrant will be named the journalist information warrant. Agencies will no longer be able to make an internal authorisation to require the disclosure of telecommunications data of journalists for the purpose of identifying a source.

The warrants will be issued by an independent issuing authority which, in the case of the enforcement agencies—typically the police—will be a judge, a magistrate or a member of the Administrative Appeals Tribunal; and, in the case of ASIO, will be the relevant minister, the Attorney-General. That independent issuing authority must be satisfied that the public interest in the issuing of the warrant outweighs the public interest in protecting the confidentiality of the identity of the journalist's source. These tests recognise that journalists have a duty to protect their sources' identities and should take care to do so, but the legal protections that flow from that duty are not absolute. The protection can be overruled if other public interests outweigh the public interest in protecting a source's identity.

In relation to metadata specifically, journalist's privilege has never prohibited the police from investigating criminal offences committed by a journalist or their source, by using investigative methods that do not involve direct compulsion of the journalist themselves.

Further, this new warrant scheme

See this speech in context