A coalition of Australian media organisations has cautioned the federal government that proposed national security laws governing metadata retention and access may “erode freedom of communication and freedom of the press”.
In a joint submission to the parliamentary joint committee on intelligence and security, which is reviewing the proposed legislation, print and broadcast media have argued that the laws will make it more difficult for journalists to report in the public interest, particularly in relation to the protection of confidential sources and the willingness of sources to share information with journalists.
“Large-scale surveillance makes it difficult for journalists to communicate with sources securely, with each and every call or email leaving a trail,” the submission argues.
The Telecommunications (Interception and Access) Bill 2014 is the third tranche of national security legislation tabled in federal parliament in the last 12 months, after both previous tranches passed in both houses of parliament late last year.
The metadata bill, which was introduced to parliament on October 30 last year, will see telecommunications providers forced to retain communications data related to phone and internet usage for two years, although companies would not be required to retain the contents of those communications.
A spokesperson for the joint media organisations told The Newspaper Works that the cumulative impact of these new laws, in combination with the two previous tranches of national security legislation, could have “a chilling effect on news gathering”.
“This is a bad outcome for journalism, and a bad outcome for the public’s right to know,” the spokesperson said.
The joint media submission has been co-signed by The Newspaper Works, along with its founding members APN, Fairfax Media, News Corp Australia and West Australian Newspapers, as well as Australian Associated Press, ABC, SBS, ASTRA, Bauer Media, Commercial Radio Australia, FreeTV and union body, the Media, Entertainment and Arts Alliance.
This same coalition of media organisations also made joint submissions to separate inquiries on the first two tranches of national security legislation, making arguments against provisions in both sets of legislation that, if breached, could see journalists and editors jailed for up to 10 years.
The Newspaper Works chief executive Mark Hollands said it was critical to ensure “we do not erode our freedom in our fight to protect it”.
“We are concerned that those who wish to communicate with a journalist in confidence will now stay silent about important issues for fear their identity and actions will be revealed,” he said.
“It is important the media sector makes these issues clear to ensure the implications of the legislation – intended or otherwise – are fully considered and our rights to freedom of expression and access to a free press are not suppressed.”
The group’s submission to the data retention bill raises a number of concerns regarding specific aspects of the legislation, namely its failure to fully outline which bodies can access the data, its lack of a requirement for warrants to be approved before data is accessed, and the absence of clarity concerning what types of data will be stored.
Media companies argued that the bill provided too much ministerial discretion when it came to the government agencies able to access individuals’ metadata. The bill lists a group of criminal law-enforcement agencies, which includes the Australia Federal Police, the Australian Customs and Border Protection Service and others, that is able to access metadata. However it allows for other enforcement agencies, as declared by the Minister, to access metadata records.
In their submission, the media groups warned of the “wide discretion” this gives the Minister to declare which authorities and bodies can be considered enforcement agencies, and that it undermines the bill’s stated goal of limiting the number of agencies and bodies able to access telecommunications metadata.
“It’s about ensuring the check and balances are in place, and that agencies that are able to access the data are doing so for the reasons intended by the changes to the law – for the purpose of law enforcement and national security only,” the joint media organisation spokesperson said.
Under the proposed bill, law enforcement agencies will still require a warrant to access the content of communications, although no warrant will be required for those agencies to access retained metadata.
The Attorney-General’s submission to the parliamentary joint committee on intelligence and security argues that the potential benefits of a warrant regime would be outweighed by the fact that “warrant applications are resource intensive, and can take days, if not weeks, to prepare and complete. Delaying an agency’s ability to begin an investigation by this length of time would seriously harm their ability to investigate crimes or threats to national security.”
The joint media submission recommends that “without the checks and balances of a warrant”, the government should implement a “properly functioning reporting process to record access to the telecommunications data”, including the submission of an annual report that includes statistics on the number of time telecommunications data was accessed and by what agencies.
“It should also be noted that our concerns are heightened by the combination of the lack of a definitive list of agencies able to access telecommunications data and the lack of any requirement for a warrant-like approval process to access telecommunications data,” the submission states.
The submission acknowledges that regulations supporting the bill will outline the specific types of data that is retained, and that the Attorney-General’s office has released a ‘Proposed Data Set’. However, it calls for the specific types of data retained under the bill to be publically available for consultation, due to the prominence of the issue.
There are also fears that the Telecommunications Bill 2014 will “exacerbate the detrimental impact” of the two previous tranches of national security legislation on the freedom of the media, with the joint media submission saying that in aggregate the bills could result in “the undermining of the confidentiality of sources, the lack of protection for whistleblowers, and the risk of journalists being criminalised.”.
The parliamentary joint committee has so far published 195 public submissions relating to the legislation on its website, and is expected to release a report on the bill on 27 February 2015.
The committee will hold public hearings into the data retention legislation on January 29 and 30, which will be attended by representatives from various media organisations, as well as other groups and agencies that made submissions to the inquiry.
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