Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

A critical matter of concern to Labor was the potential for the bill, in the form in which it was introduced by the Abbott government, to stifle freedom of the press. A number of working journalists and their organisations have expressed legitimate concerns that the data retention scheme as proposed by the government would compromise the anonymity of journalists' sources. Labor have been clear that we share the concerns expressed by journalists. The Leader of the Opposition wrote to the Prime Minister, making clear that Labor believe that the relationship between journalists and their sources should be protected by warrant and that this important matter needed to be progressed.

Although the Attorney-General suggested several times this week that the concerns of the journalists were misguided, at one stage describing those concerns as 'a red herring', the government has agreed to Labor's demand to put in place a warrant system to protect journalists' sources. Labor has been working to negotiate a warrant scheme to protect freedom of the press, and I am pleased that the scheme has now been agreed and is the subject of this group of amendments before the House.

The key aspects of the framework to protect journalists' sources are as follows. Agencies seeking access to retained data will be prohibited from accessing telecommunications data to identify a journalist's source unless that agency obtains a journalist information warrant. There will be a statutory presumption against issuing a journalist information warrant. Agencies must establish that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the journalist's source, having regard to matters including the extent to which the personal privacy of individuals would be interfered with, the gravity of the matter in relation to which the warrant is being sought, the extent to which the information being sought would assist the agency seeking it to perform its functions, whether the agency has made reasonable attempts to obtain the information sought by other means, and any submissions made by the public interest advocate.

This last point is of particular importance and I will say a little bit about the public interest advocate, because the public interest advocate will play a critically important role in the protection of journalists' sources. The public interest advocate will speak for the matters of public interest that are to be taken into account in any decision as to whether or not to issue a journalist information warrant. The amendments provide that the Prime Minister 'shall' appoint a public interest advocate. For the avoidance of any doubt, the government has committed to appoint a public interest advocate, because that advocate, as I have said, central to the operation of the warrant system to protect freedom of the press in the context of the data retention scheme. I must say that I am a little puzzled about the government's choice of the word 'shall', given that the Office of Parliamentary Counsel's Plain English Manual says that 'must' should be used in preference to 'shall' because 'shall' is ambiguous. If there is any doubt created by using the word 'shall', let me remove it by saying that this legislation will oblige the Prime Minister to appoint one or more public interest advocates.

The public interest advocate is to be notified whenever an application for a journalist protection warrant is made. The public interest advocate is charged with responsibility to, in effect, stand in the shoes of the journalist and argue the public interest issues relevant to preserving the confidentiality of a journalist's sources in relation to a particular warrant application. Labor expects that the public interest advocate will be a very senior lawyer or lawyers appointed within the Prime Minister and Cabinet portfolio, similar to the existing arrangements for the Independent National Security Legislation Monitor. If a warrant is issued, the Inspector-General of Intelligence and Security or the Ombudsman—depending on which agency has obtained the warrant—and the Parliamentary Joint Committee on Intelligence and Security must be notified as soon as practicable. The intelligence committee will be empowered to order the IGIS or the Ombudsman to provide a briefing on the issuing of the warrant. I commend this scheme for journalist information warrants, which will provide protection in respect of journalists' sources and thus provide some protection for freedom of the press, to the House.

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