OPINION: Journalists have won concessions from the federal government in regard to its proposed metadata law. The government bill would have given enforcement and intelligence agencies a broad discretion to access journalists' metadata, including information setting out who the journalist has been communicating with. This could have been used to identify the source of leaks or other embarrassing stories run by a journalist.
After an uproar by the media, Labor refused to support the bill in this form, and so the government was forced to compromise. The bill as now amended includes special safeguards that apply to the release of metadata that might identify a journalist's source.
The revised bill says that police and other enforcement agencies can only access this information where a warrant has been issued by a judicial officer or legal member of the Administrative Appeals Tribunal. They may grant the warrant after considering the arguments of the agency and any submissions by a public interest advocate.
These new advocates will be appointed by the Prime Minister, but the bill is short on detail as to their role. Presumably, they will represent the interests of journalists and the community. However, their ability to do so will be limited because they are barred from communicating with the journalist concerned. Indeed, the whole process is so secret that even mentioning that a warrant is being sought can land a person in jail for two years.
A final protection is that access to metadata identifying a source will only be approved where the public interest in issuing the warrant outweighs the public interest in protecting the identity of the source. This cements the special protection given to journalists. They will have the benefit of a public interest test that does not apply to others in the community.
These processes and checks are an improvement. They remove easy access to journalist's metadata where this might identify a source. On the other hand, major problems remain.
In particular, the law still permits government agencies to identify a source in inappropriate circumstances. This is due to the anti-terrorism laws passed last year, which brought about a significant shift in power between government and the press. These laws subject journalists and their sources to the heightened possibility of imprisonment for the reporting of national security matters.
One example is a new offence in section 35P of the ASIO Act. It imposes up to 10 years in jail for any person, including a journalist or their source, who reveals information related to a special intelligence operation conducted by ASIO. Other laws impose stringent jail terms on those who reveal other intelligence information to journalists, even if they are whistleblowers.
A warrant granting access to metadata that identifies a source will almost certainly be granted where agencies investigate crimes such as these. It is inconceivable that a warrant would be denied when accessing the metadata is necessary to enforce these and other serious criminal provisions.
The only way to fix this is to change the law to ensure that jail terms are not imposed upon journalists and others in regard to media stories that, for example, reveal government wrongdoing or the death of an innocent bystander. Unfortunately, there is no sign that the government is moving to fix section 35P or the other offences.
A further issue with the metadata bill is that the new safeguards are subject to a notable exception. When ASIO seeks access to metadata that might identify a source, it does not need to seek the approval of a judge or AAT member. It only needs the approval of a government minister.
In this case, it will be up to a member of the government to weigh the public interests at stake. This is not appropriate. Ministers tend to take a very different view to journalists and the public on what disclosures are justified in the public interest. They have an inbuilt incentive to prevent media reporting that might cause political damage.
Journalists have rightly been a focus of recent debate about the metadata bill. However, this obscures the fact that the new law will permit access to the data of every member of the community. Where, for example, the information relates to doctors and their patients, or lawyers and their clients, a government agency will not need to gain a warrant, or to consider whether accessing this information is in the public interest.
There is no sign that these broader problems will be addressed. Indeed, the government and Labor appear to have lost the appetite for further amendments. The Bill will likely complete its passage through Parliament this week. It will join the already long list of Australia's problematic national security laws.
George Williams is the Anthony Mason Professor of Law at UNSW.
This opinion piece was first published in the Sydney Morning Herald.