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

I embrace the Attorney's comments. I will not seek to divide on this. I will not withdraw the amendment, but I think from the fact that this was going to happen anyway—I am not a mind reader, Attorney—we are on the same page, or at least on the same drafting page. I am grateful for that, because I think it will make it more robust if the Public Interest Advocate is aware of any additional information in order to argue its case.

Question negatived.

by leave—I move amendments (4) to (6), (8) and (9) on sheet 7672 together.

(4) Schedule 1, item 6L, page 36 (lines 5 to 28), omit subsection 180L(2), substitute:

(2) The Minister must not issue a journalist information warrant unless:

  (a) the Minister has given the Public Interest Advocate reasonable notice of the request for the warrant in accordance with section 180X; and

  (b) the Minister has:

     (i) given the person to whom the warrant request relates reasonable notice, in writing, of the request for the warrant; and

     (ii) invited the person to make a submission on the request; and

  (c) the Minister is satisfied that:

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

     (ii) 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 the matters in subsection (2B).

  (2A) In making his or her decision to issue or refuse a journalist information warrant, the Minister must give greatest weight to the matter mentioned in paragraph (2B)(a).

  (2B) For the purposes of subparagraph (2)(c)(ii), the matters are the following:

  (a) the public interest in the communication of facts and opinion to the public by a free media, and, accordingly in the ability of the media to access sources of facts on the basis that confidentiality of the identity of the source will be protected;

  (b) 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;

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

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

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

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

  (g) any submissions made by the person to whom the warrant request relates;

  (h) any other matters the Minister considers relevant.

(5) Schedule 1, item 6L, page 37 (line 26), omit "paragraphs 180L(2)(a) and (b)", substitute "subparagraphs 180L(2)(c)(i) and (ii)".

(6) Schedule 1, item 6L, page 37 (line 29), omit "paragraphs 180L(2)(a) and (b)", substitute "subparagraphs 180L(2)(c)(i) and (ii)".

(8) Schedule 1, item 6L, page 41 (line 9) to page 42 (line 10), omit subsection 180T(2), substitute:

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

  (a) the Part 4-1 issuing authority has given the Public Interest Advocate reasonable notice of the application for the warrant in accordance with section 180X; and

  (b) the Part 4-1 issuing authority has:

     (i) given the person to whom the warrant application relates reasonable notice, in writing, of the application for the warrant; and

     (ii) invited the person to make a submission on the application; and

  (c) the Part 4-1 issuing authority is satisfied that:

     (i) the warrant is reasonably necessary for whichever of the purposes set out in subsection (4) is applicable; and

     (ii) 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 the matters set out in subsection (5).

(3) In making a decision to issue or refuse to issue a journalist information warrant, the Part 4-1 issuing authority must give greatest weight to the matter mentioned in paragraph (5)(a).

(4) For the purposes of subparagraph (2)(c)(i), the purposes are the following:

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

  (b) 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;

  (c) 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;

  (d) 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).

(5) For the purposes of subparagraph (2)(c)(ii), the matters are the following:

  (a) the public interest in the communication of facts and opinion to the public by a free media, and, accordingly in the ability of the media to access sources of facts on the basis that confidentiality of the identity of the source will be protected;

  (b) 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;

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

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

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

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

  (g) any submissions made by the person to whom the warrant application relates;

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

(9) Schedule 1, item 6L, page 43 (lines 12 to 28), omit section 180X, substitute:

180X Public Interest Advocates

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

Notice to be given to Public Interest Advocates

(2) If a notice is given to a Public Interest Advocate under section 180L in relation to a request for a journalist information warrant, or under 180T in relation to an application for a journalist information warrant, the notice must:

  (a) be in writing; and

  (b) include:

     (i) the information and material that was provided with the request or application, as the case may be; and

     (ii) the additional information or material (if any) that is prescribed by the regulations.

Further notice if additional information provided

(3) If:

  (a) the Minister requires the Director-General of Security to give further information under section 180K in connection with a request; and

  (b) the Director-General gives the further information or refuses to give the further information;

then the Minister must notify the Public Interest Advocate, in writing, of the further information or the refusal as soon as practicable.

(4) If:

  (a) the Part 4-1 issuing authority requires the chief officer of an enforcement agency, or a person other than the chief of the agency, to give further information under section 180R in connection with an application; and

  (b) the chief officer, or the other person, gives the further information or refuses to give the further information;

then the Part 4-1 issuing authority must notify the Public Interest Advocate, in writing, of the further information or the refusal as soon as practicable.

Submissions

(5) 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.

(6) In making a submission under subsection (5), a Public Interest Advocate must have particular regard to protecting the public interest and the need to act as a contradictor to the person requesting, or applying for, the journalist information warrant.

Regulations

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

Declaration not legislative instrument

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

Amendment (4) amends proposed section 180L(2) to alter the circumstances in which the minister must not issue a journalist information warrant. The changes to the proposed subsection provide that the minister must not issue a warrant where reasonable notice of the request has not been given to the Public Interest Advocate. Further, reasonable notice must also be given in writing to the person to whom the warrant relates. The minister must also invite the person to make a submission on the request. The minister must also be satisfied that the organisation's functions would extend to the making of authorisations regarding that particular person and that the public interest in ensuring the warrant outweighs the public interest in protecting the confidentiality of the identity of the source.

These amendments also provide that the minister must give the greatest weighting to the public interest provisions set out in proposed subsection (2)(b). These amendments will ensure that paramount consideration is given to public interest matters by the minister when considering whether to issue a journalist information warrant. The aim of these provisions is to ensure that the greatest consideration is given to the impact of issuing such warrants on the public interest and to provide basic requirements that must be met in terms of notice to the Public Interest Advocate and in allowing a journalist a right of reply in considering the public interest.

Senator Collins in her contribution made mention of the US system. It is true, as the Attorney has said, that there isn't a system of warrants as such and that the material—metadata—is retained by the NSA. As a result of a very unfortunate raid on Associated Press in Washington DC a couple of years ago, US Attorney General Eric Holder put in a number of protocols which have been evolving, but essentially the general rule is that journalists—media organisations—are consulted before that metadata is accessed so they can argue the access. I think one of the minister's advisers is shaking his head—maybe it is at me; maybe I have that wrong; I will be happy to stand corrected. That is my understanding of the protocols and guidelines I have seen, and I am sure we will get to this at some other time. I am conscious of the time. Could I get the Chairman's guidance—are we going to 11.50?

The CHAIRMAN: Till 10 past 12.

I should know this by now, shouldn't I? Thank you.