Thursday, 26 March 2015
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015; In Committee
I rise simply to indicate my support for Senator Wang's amendment (1) on sheet 7690. It is a relatively mild amendment. I must say I take issue with Senator Wang's suggestion that this is the only aspect of the bill that requires fixing. I think there is a great deal more that requires fixing and that there are much bigger issues than this one. But, if this amendment were to be adopted, it would at least improve the bill in a marginal fashion. I endorse the amendment.
I remind those listening that Senator Wang's amendment would provide for the notification of journalists after the fact that a warrant has been issued in relation to their telecommunications data. This bill already reflects protections for journalists arising out of the joint committee's considerations and recommendations and is implementing the warrant regime for journalists that Labor argued for and achieved in the other place. We believe that those amendments to the bill already provide ample oversight of access to the telecommunications data of journalists.
The bill in its amended form provides that the IGIS, the Ombudsman and the committee itself will be notified when a journalist's data is accessed. These bodies are well placed to make inquiries and to ascertain whether this access was indeed appropriate. Labor appreciates that Senator Wang has been concerned, as I indeed mentioned that Labor was, that the way in which this bill has proceeded has not brought the public with it, and we appreciate his efforts to deal with this aspect, but we think the arrangements as reflected in the bill now are satisfactory.
I was just being told by Senator Leyonhjelm that I am too polite, which is probably true. I will try and mend my ways, Senator Leyonhjelm. I indicate that I do support Senator Wang's amendment. I think it does make an improvement. I agree with Senator Leyonhjelm that it needs to go much further, but it is an improvement. It leads to an important question for the Attorney: can the Attorney confirm that, if a media outlet, at any time, indicates that it has been the subject of a journalist information warrant, that itself is a criminal offence punishable by a two-year jail term?
I have discussed this privately with the Attorney. If a media organisation, on a daily or weekly basis, says on its website, 'We have not been subject to any journalist information warrants for our metadata,' and then they suddenly stop saying that, could that imply that they have been subject to a warrant? I have not articulated it very well, but that is one of the arguments that has been put to me by someone who is concerned about this legislation. In other words, it is what they refer to—I do not think it is quite a term of art—as almost a 'warrant canary'. I am glad that it amuses the Attorney. But, if you had been saying that you had not had a warrant and you then stay silent on it, that might imply that you then do have a warrant. So, could the fact that you say that you do not have a warrant itself be a criminal offence?
No, Senator, not in the circumstances you posit. As you say, you did raise this with me privately. I have reflected on the question: definitely not. Sometimes the law will attribute conduct to a person because of other aspects of their conduct, sometimes even their silence. That would be called, in these circumstances, constructive disclosure rather than actual or deliberate disclosure. But merely to remain silent would certainly not, in my view—and I have spoken with others as well—constitute constructive disclosure.
I thank the Attorney for his answer. But, further to his answer, this is not a case of mere silence. Say the scenario is one where, at 8 am every day, a media outlet announces, or a journalist says on their website, 'I have not been the subject of a journalist information warrant.' But, after 380 days of doing this, one day they stop saying that. Could that in itself go beyond silence to actually imply that they have been subject to a warrant? That would be a reasonable conclusion that people would reach. Could that previous conduct, saying that they had not been subject to it, imply that they have disclosed that they have been subject to a warrant?
No, simply because the organisation that you posit has not done anything to invite the inference which, according to your scenario, would be drawn. Merely not to say something would not be enough; there must be a positive act. So, the answer to your question, Senator Xenophon, is still no.