A chilling step closer to Australian secret police

Jonathan Holmes

Foreign journalists are falling off their chairs in shock at the brutality of our data retention law, yet we hardly blink an eye.

For days, we've been scaring ourselves silly, because a few Melbourne teenagers might have planned to attack police officers with knives on Anzac Day. Good on the cops for nabbing them, but hardly an existential threat to our society.

Meanwhile, nine days ago, the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 became law, after passing through both houses of Parliament with Labor support.

The more power you give any organisation, the more light needs to be shone on how it uses its power. 

A record of your electronic communications – who you call, or text, or email, or message, when you do so, and where you are at the time – must now be kept by your service provider for a minimum of two years. And more than 20 law enforcement agencies will have access to those records without the need for a warrant, and without (needless to say) anyone informing you.

Well, Attorney-General George Brandis​ asks, how worrisome is that? After all, before this law was passed, your metadata was available to 85 agencies. 

"The only change that this bill makes to the relationship between the state and the citizen," he told the Senate, "is to introduce safeguards in relation to the access of law enforcement agencies to metadata, which were not there before."

In particular, Senator Brandis addressed the so-called "chilling effect" on investigative journalism that the media feared would result from the authorities' ability to scour reporters' metadata in search of their confidential sources. That's been fixed, he assured us. The new act contains "a large and detailed architecture for the protection of journalists ... which forms no part of the existing law".

So it does. And I've been brooding about that architecture for the past two weeks, as I sat for many hours on aeroplanes, courtesy of the ABC's Foreign Correspondent. I've talked about it to journalists in Paris, Washington and New York, specialists in reporting on terrorism and counter-terrorism. And when I described one particular facet of the act to them – one that has received minimal comment here in Australia – they nearly fell off their chairs.

Division 4C of the amended act lays down that if a law enforcement agency wants to search a professional journalist's metadata in pursuit of his or her source, it first has to get a "journalist information warrant" from an "issuing authority" - usually a judge or magistrate - or in the Australian Security Intelligence Organisation's case, from the Attorney-General. 

The authority should only issue the warrant, the act says, if the public interest in doing so outweighs various other public interests, including the source's right to privacy. The authority must also weigh in the balance any arguments made by a public interest advocate.

This curious person – a senior lawyer (of course) with the necessary security clearances – will be appointed by the Prime Minister, no less. And, in the soothing words of the opposition defence spokesman, Labor's Stephen Conroy, "the PIA will be empowered to stand in the shoes of the journalist and argue why it is contrary to the public interest to issue the warrant".

Well fine. Except there's a Kafkaesque catch-22. The public interest advocate will not be able to inform the journalist or news organisation that a warrant has been sought, so the advocate cannot be briefed on any public interest aspect of the story, or any particular reason why the source should remain confidential, that is not already blindingly obvious. 

Indeed, this public interest advocacy will not be public. It will be utterly private: one lawyer secretly trying to persuade another lawyer why a spook or a copper should not get access to a reporter's source, while the reporter – and, of course, the source – remain in blissful ignorance.

And here comes the kicker: the clause that had those foreign reporters falling off their chairs, but was barely mentioned by anyone, so far as I can see, in the parliamentary debates about the bill.

Section 182A of the new act says anyone who "discloses or uses" information about a journalist information warrant – about whether one has been applied for, or has been granted, or exists, or even does not exist - can be sent to prison for two years. Think about that.

What possible justification can there be for this extraordinary provision? After all, these warrants need have nothing whatever to do with terrorism or national security. They can be issued to any agency that is investigating pretty much any crime (including, presumably, the crime committed by any Commonwealth public servant who leaks official information to the media – see section 70 of the Crimes Act).

Section 182A is of a piece with the increasingly draconian enforcement of secrecy that Australians have blithely accepted since 9/11.

The 2003 act, for example, authorises ASIO to detain and question people for up to seven days, even if they are not suspected of complicity in a terrorist act, and prevents them from telling anybody that it has happened. The 2014 act says anyone who discloses information about a "special intelligence operation" can be imprisoned for up to 10 years. And there are many more such examples. 

In the course of the debate on the new Data Retention Act, Conroy made this extraordinary statement: "Labor is determined to ensure that our national security and law enforcement agencies absolutely have the powers that are necessary to keep Australians safe."

"Absolutely" – what a dangerous word. Absolutism has no place in a democracy, especially not when it is applied to national security agencies. The more power you give any organisation, the more light needs to be shone on how it uses its power. To meet the terrorist "threat", we have been granting our security agencies and police forces more and more power, protected by ever more obsessive secrecy: more power, and more secrecy, than any comparable democracy in the world.

It is no exaggeration to say Australia is on the way to creating a secret police. What a triumph that is for the terrorists.

Jonathan Holmes is a Fairfax columnist and a former presenter of the ABC's Media Watch program.

http://www.theage.com.au/comment/a-chilling-step-closer-to-australian-secret-police-20150421-1mpgdk.html