Senate debates

Thursday, 26 March 2015


Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015; In Committee

1:35 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | Hansard source

Madam Temporary Chair, can I say that your urging is very wise. It is easy to be distracted by my colleague from South Australia. Consideration must be given to this amendment, because our public interest advocates will be flying blind. They will not have access to journalists. They will not be able to speak to journalists or to media organisations to ask, 'What is this about?' as they do in the US, as a general principle, unless it is a matter of an emergency in terms of security and the like, in terms of an imminent risk. They will not be able to do that. There ought to be that level of scrutiny; otherwise, my fear is contained in the words of Philip Dorling, a great investigative journalist, in a piece on 17 March headed 'Security laws bring us closer to the day when journalists will be jailed for reporting'. May I add to that that it will also bring us closer to the day where it will be much easier for sources to be exposed as a result of metadata surveillance. This is not about making us safer; this is about sections 70 and 79 of the Crimes Act in terms of whistleblowers who release, in an unauthorised fashion—which is extremely broad under sections 70 and 79—information which governments may find embarrassing.

The classic case is that of a person I have enormous respect for, Allan Kessing, who, to this day—and I absolutely believe him—was not responsible for leaking the reports he prepared as a Customs officer in the early 2000s in relation to security breaches and terrorist threats at Australian airports. Those reports found their way into The Australian newspaper in 2005, as memory serves me correctly. He was dragged through the courts and was convicted, notwithstanding maintaining his innocence. The material which I have not seen contained in those reports, I understand, was mirrored in the report of the Rt Hon. Sir John Wheeler, who prepared a report for the Howard government. As a result of the triggering of the exposure in The Australian newspaper of material written by Mr Kessing, there was a massive $200-plus million upgrade of airport security in this country. It was clearly embarrassing to the government of the day.

This metadata law will make it much easier for those that have gone to journalists with information to be tracked down. You can triangulate the information: you can find out the time of call, where it was made, who contacted whom and at what time. Metadata allows you to do that. You do not actually need to look at the content; you will have enough information there to have a successful prosecution under sections 70 and 79. I agree with Mr Dorling's recent piece in The Canberra Times that, in respect of section 70 of the Crimes Act, it makes it an offence for Commonwealth official to disclose any government information without proper authorisation. He makes the point:

This is the basic law that makes it a crime to leak any government information – from the highest cabinet secrets or the number of paperclips used in a local Centrelink office.

That is why it can be abused. What I am proposing would strengthen protection for journalists; it would be a much stronger and much more robust regime of public interest advocates. I commend the amendments. I indicate that, in respect of these amendments, I feel so strongly about them that I will be seeking to divide on this issue.


No comments