Jason Clare (Blaxland, Australian Labor Party, Shadow Minister for Communications) Share this | Hansard source

These are important amendments which have resulted after a lot of hard work after a lot of disagreement. As the member for Isaacs said, this is an area where the Parliamentary Joint Standing Committee on Intelligence and Security could not agree. Labor members argued that a warrant was necessary for law enforcement and security agencies to get access to a journalist's metadata for the purposes of identifying their source. Liberal members did not agree. We believe that it is important that a warrant should be required, because we believe that journalists are special, that journalists are different.

As I said in the second reading debate, the privacy of journalists' sources is integral of the freedom of the press. It is why shield laws exist for journalists. It is important, because sometimes it is journalists who are investigating law enforcement. To this point, the United Kingdom recently passed legislation enacting a code of practice, which will come into effect before their election, to create a warrant based process before law enforcement can get access to a journalist's metadata for the purposes of identifying their source—and they have done it for good reason. Work that has been conducted in the United Kingdom has identified where law enforcement access to journalist metadata has been misused and has identified that this is a necessary check. Karen Bradley, the Minister for Organised Crime in the UK, recently said:

We accept that journalists are a special case because, for example, in investigating a leak, determining who spoke to whom may be more important than what was said, but the same argument does not apply to other sensitive professions.

That is why we have been adamant, consistent and insistent that a warrant is necessary if law enforcement or national security agencies want to get access to a journalists' metadata.

Thankfully, finally, the Prime Minister backed down on this on Monday. He did that after a letter from the Leader of the Opposition on the weekend that said, 'We will listen very carefully to the evidence that is to be given tomorrow at a hearing of the committee by the chief executive officers of News Limited, Fairfax, Channel 9, Channel 10, Channel 7, ABC and SBS and we reserve our right to move amendments in the Senate.' I think the threat of those individuals attacking the Prime Minister and the absence of this amendment in this legislation was enough to force him to back down.

As I said on Tuesday morning, we also believe that this warrant must not be just a tick and flick. After a lot of hard work, we have got amendments in this legislation which I believe now meet that test. I draw the House's attention to two key elements of this warrant process. The first is the establishment, for the first time, of a public interest advocate, and the second is a standard that the judge will need to be satisfied of before they can grant a warrant. In respect of the first, the establishment of a public interest advocate, as the minister and the shadow Attorney-General have said, this creates an independent voice in the court acting for the public interest, and it is a critical part of making sure that this is not a tick-and-flick approach. It is based on the public interest monitor system that exists in Queensland and Victoria. It has existed for 20 years in Queensland with respect to listening device warrants and for five years in Queensland with respect to phone taps. It would be a senior barrister in private practice that would fulfil this role.

In understanding how important this provision is, I draw members' attention to an opinion piece written by Terry O'Gorman, the president of the Australian Council for Civil Liberties, in The Australian, in June 2011 entitled 'We need more accountability for phone taps to guard civil liberties'. In arguing the case for a similar regime in Victoria at that time, he said that there should be a similar type of model in all states and territories, including for federal law enforcement agencies. He said:

The Queensland PIM has worked well for more than 15 years. It is an accountability measure that should be introduced Australia-wide.

I think that demonstrates the seriousness of this role and the role that it provides in making sure that this is not a tick-and-flick approach.

I also draw members' attention to the proposed section 180T(2)(b), which states:

(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 …

This is the key test that the judge needs to be satisfied of and provides an assurance that this is not a tick-and-flick warrant process. (Time expired)

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