Attorney-General George Brandis insists journalists and media companies have nothing to fear from the proposed laws around retention of Australians’ internet and phone metadata. He says the laws are part of the Federal Government’s attempts to make it easier to track people planning terrorist activities on home soil, and that journalists are not the target.
That may be true but it is cold comfort for reporters who find themselves the target of investigations where their communications metadata can be accessed and examined, potentially exposing contact with confidential sources.
Of course, this already happens, as Australian Federal Police Commissioner Andrew Colvin conceded when he tried to hose down concerns raised by the journalists union, the Media, Entertainment and Arts Alliance. Mr Colvin said AFP requests to access a journalist’s metadata were rare, indicating that it does happen and without the target’s knowledge.
The laws now before Parliament aim to formalise and limit existing practices and compel internet and phone companies to store customers’ data for two years. This means police and other investigators can get access to information about when and with whom contact has been made. Metadata includes addresses of websites accessed, if not the content of sites and emails.
Journalists need protection from this intrusion into the way they work, and not just for their own security and peace of mind. Reporters often rely on whistleblowers and contacts to provide information in confidence. This is an important and well-established practice which helps ensure governments and other institutions are held to account. Whistleblowers often need anonymity to protect themselves from the threat of prosecution or loss of their job.
The proposed laws put this confidentiality at risk. A whistleblower will never know whether a journalist’s metadata records will be accessed by investigators. He or she must assume that they will be. This will inhibit the flow of information for the public good.
The proposed compromise which would ensure a warrant must be obtained by police before a search of metadata is conducted is of little use unless it gives a media organisation or journalist the chance to contest an application for a warrant, as happens in the US. Senator Brandis has indicated this is unlikely to happen.
Independent senator Nick Xenophon had it right when he described this concession as a “veneer of protection”. Senator Xenophon is one of the chief critics of the proposed laws but his protest and those of other crossbench senators, including the Greens, will come to nothing if the coalition and Labor are on a unity ticket in the name of national security.
There is an argument for giving police and other authorities more power to tackle terrorism. But this should not be done in haste or without due regard for unintended consequences. The proposed changes are not intended to take effect for two years, so there is time to ensure mistakes are avoided. The Opposition should be extremely wary about signing on to this strike against free speech.