The Australian Federal Police has indicated it is not able to answer a series of data retention related questions posed to the organisation by independent Senator Nick Xenophon as part of the latest round of Senate Estimates hearings.
Xenophon had sought details on whether the AFP had accessed the phone and Internet ‘metadata’ of federal politicians or their staffers within the last 12 months.
The AFP said that revealing such information, or information about historic domestic telecommunications preservation orders, would contravene the provisions of the Telecommunications (Interception and Access) Act 1979.
Similarly, the AFP said it could not legally reveal if it had applied for any journalist information warrants or if any such warrants had been granted.
“The Australian Federal Police is unable to provide the Hon. Senator with this information as doing so would be an offence under section 182A of the Telecommunications (Interception and Access) Act 1979,” the AFP’s answer to a question on notice said.
“This section makes it an offence to disclose whether a journalist information warrant has been, or is being, requested or applied for. It is also an offence to disclose information about the making of a journalist information warrant, the existence or non-existence of such a warrant, or the revocation of such a warrant.”
In February, the AFP issued a public statement saying it had “not accessed or applied to access the metadata information belonging to any journalist since 13 October 2015” — the date the government’s data retention scheme came into effect.
“Legislation surrounding the Telecommunications Act prevents the AFP from publicly releasing specific information to provide further clarity surrounding this inaccurate claim,” the statement said.
The claim referred to was comments by the CEO of the Media, Entertainment and Arts Alliance in response to revelations about the existence of a 200-page file the AFP had compiled on Guardian Australia journalist Paul Farrell.
The system of journalist information warrants was introduced as part of the government’s data retention legislation. The warrant system was introduced amid criticism that the data retention bill could have a chilling effect on reporting.
Under the data retention legislation a range of organisations including the AFP are able to access so-called ‘metadata’ without a warrant. (Activities such as accessing the body of an email stored on a server or intercepting a call still require warrants.)
The journalist information warrant system has limited scope; it is restricted to occasions where an authorised agency seeks access to a journo’s metadata for the purposes of identifying the source of a story.
Applications for such warrants take place in secret with penalties in place for disclosing to a journalist or his or her publisher that a warrant has been applied for.
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The secrecy of the scheme and the system of public interest advocates intended to represent a check on the use of the power have been subject to criticism.