Warrant process for journalists’ ‘metadata’ scrutinised

The system of ‘journalist information warrants’ was created to assuage concerns over data retention’s impact on reporting

The Parliamentary Joint Committee on Human Rights (PJCHR) has sought answers from the attorney-general on a regulation that covers the process by which organisations such as ASIO will be able to access the so-called ‘metadata’ of a journalist when they seek to identify the source of a report in the media.

Amid concerns over the impact that accessing the telecommunications and Internet data covered by the data retention regime could have on the media, the government amended the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 to include a system of journalist information warrants, prior to parliament voting on the legislation.

The government also created a ‘Public Interest Advocate’ (PIA) position that can make submissions on warrant applications.

The data retention legislation was passed in March.

Under normal circumstances, authorised enforcement agencies are able to access metadata without a warrant, including journalists’ data.

However, if an agency is seeking data specifically for the purpose of identifying a journalist’s source, then it must attain a warrant. In the case of ASIO, the attorney-general will issue a warrant. For other agencies, that that can be done by an issuing authority.

It is illegal to disclose that such a warrant is being sought, and the process of granting a warrant takes place in secret.

The process for obtaining a warrant is set out in the Telecommunications (Interception and Access) Amendment (Public Interest Advocates and Other Matters) Regulation 2015, as are details of the PIA system.

That regulation’s compatibility with human rights is a subject of the PJCHR’s latest report, which was tabled today.

The PIA can make submissions on a warrant application but is prohibited from contacting a journalist who is the subject of an application.

The report notes that the regulation does not allow the PIA to seek instructions from a journalist or potential sources affected by a warrant, even in circumstances where it would not jeopardise an investigation.

“The regulation also provides the minister with a discretion to provide the PIA with only a summary of any further information provided to the minister or issuing authority relating to proposed journalist information warrant requests or applications,” the report states.

“As such, the PIA may not be in a position to effectively mount a case against an application for a journalist information warrant,” the report notes.

“It is unclear why it is necessary to provide PIAs with only a summary of further information if the intention of the regulation is to ensure PIAs are able to advocate in the public interest,” it adds.

Although a PIA must be notified of an application and (if it’s a written application) receive a copy of it, there is no requirement under the regulation that a PIA be able to make a submission prior to a warrant being issued.

The PJCHR report said the committee is seeking advice from the attorney-general whether it is justified that there are no circumstances under which the PIA can seek the advice of people affected by a journalist information warrant; whether it’s reasonable that only a summary of information related to an application must be provided to the PIA by the minister or issuing authority; and whether it is “reasonable and proportionate” that warrants can be issued prior to a PIA submission being considered.

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