'Illegals' have precedent

I recall reading a few years ago about the unwitting admittance into Australia via the refugee program of a war criminal - an error only righted by his victims, forced to live within proximity of him. 

This very serious need for scrutiny is sometimes the tenor of government defensiveness over Australia's refugee intake and may also be where xenophobic positions gain mainstream traction. 

So imagine my surprise when I am reading about the cocooning of neo-nazism in certain regions of the world when I came across some interesting historical data:

It goes on to discuss

Journalist Information Warrants - Surveillance of Australian Journalists Pt. 3

This post on Journalist Information Warrants continues on from the first and second in this series, elaborating on the info in those posts building up a bit of public knowledge about the stressors on journalism work.

Many people won't realize that it is not possible in the age of mass surveillance for a journalist to fulfil obligations to confidentiality, anymore. Ubiquitous CCTV will show sources heading to a meeting, sim, phone and device location data is harvested for on-selling to 3rd parties, mobile, echoes and landlines can be used for sound interception, and, if that doesn't un-do the dedicated whistleblower, then the use of retrospective and third party warrants will.

Such an environment is indicative of an imbalance in society between the needs of the state and the democratic needs of the individual. In the US this need to protect the rights of individuals to enable democracy is evident in the 1st Amendment of the Constitution. However, Australia has no constitutional rights in this regard and no bill of rights, either, and the ethical infrastructure of human rights law has not progressed at the same pace as surveillance law.

So these JIW posts aim to increase awareness of the problems of free speech and free media here in Australia - a 'constitutional' monarchy democratic system, in which the balance of power has been weighted in favour of institutional needs since the establishment of the penal colony. Media surveillance reform & press freedom is an area that represents an excellent opportunity for Australia - a young country (less than 120 y/o), to strengthen the quality of its democratic values and freedoms.

In a conservative era it can be really hard getting through to people about why they need to be free to ventilate their insurmountable issues in the media, and for society to be able to be alerted to potential problems or government corruption.

With these things in mind, today's post - more specifics on definitions - is a little technical but hopefully not too much so.

One or two of the links require access to a uni library database, so if you are a student or a lecturer you can access these when you are logged into your uni (for those who aren't logged in all the time).

Definition’s Effect

Currently, ASIO is only required to account to the Commonwealth Attorney General if they desire to surveil a person whose activities may fall within the limited definition of a journalist. 

In 2017 the AFP announced at Senate Estimates it had been unnecessary to apply for any warrants since the implementation of the safeguards (McGuirk, 2017), and ASIO reported they had also had little need to apply for warrants (AAP, 2017). 

The highly interpretative journalist definition in Journalist Information Warrant provisions remains the same [9] as that of the Telecommunications (Interception and Access) Act 1979 s. 180 (G):

(i)                   a person who is working in a professional capacity as a journalist; or

(ii)                 an employer of such a person

The AFP refer to a forty-year-old definition of a journalist contained in the 2019 amended act [9] that pre-dates the rise of digital communications that purportedly necessitate the warrant scheme. Despite repeated clarifications and extensions, the AFP do not further define or update the definition(Pettersson, 2017). 

The Media Entertainment and Arts Alliance (MEAA) has repeatedly appealed to the government to draft into legislation one consistent and fair definition. MEAA’s position is clearly stated in its recent parliamentary submissions to the inquiries regarding Economics Legislation(2017), and, the National Security Legislation Amendment (Espionage and Foreign Interference) Bill (2017). 

MEAA highlight definitional limitations of a journalist’s employer underpinning the utilization of the financial capacity of a media outlet are out of date; likewise, defining a journalist worthy of legislative protection by a financial arrangement with such an institution, is further limiting and ‘anachronistic’ (MEAA, 2018).

That outdated government definition of journalists and their earning methods, secondarily restricted which media workers and outlets may extend confidentiality to a source; to whom a source may confide, and, what platforms safeguarded content can be published on. 

The term ‘news medium’ and Evidence Act 1995 journalist definition (s.126J) were less problematic with the capacity of media workers to produce news(MEAA, 2018), and the 2018 report of the 2017 Senate Committee has supported MEAA’s stance(MEAA, 2018). 

Compounding this overall lack of privacy for journalistic processes(Mann, 2018, p. 13), under s.313 of the Telecommunications (Interception and Access) Act, 84 agencies have simply bypassed the metadata warrant system after access was reduced in 2015, from 81 to 21 agencies (Pearce, 2018). 

Authorised agencies were implicated in funnelling citizens’ metadata to unauthorized agencies (Mann et al, 2018, p. 369). In an increasingly imbalanced privacy-security dynamic (Mann et al, 2018), journalists are afforded few professional considerations compared to the needs of institutions, and may be jailed for two years for disclosure of any Journalist Information Warrant(Ackland, 2015).

An institutional resistance to regulatory reform has seen Australia listed 21^st in the 2019 World Press Freedom Index. At the 1992 culmination of the Australian Journalists Association (AJA) national press card registration became MEAA’s responsibility; press card registrations have declined, and over the same period, newsrooms have become increasingly de-unionized. AJA press card registration had provided uniform identification, and defined media workers’ roles. 

Journalist Information Warrants - Surveillance of Australian Journalists Pt 2

My last post was meant to flow freely into the next, but exams got in the way - sorry readers. But hopefully my studies will enable greater insight into such matters, so it's all for good.

Recapping - the Journalist Information Warrant Scheme is a small schedule of the Telecommunications Interception Act (No 7, actually), and, it presently works in tandem with Australia's (now notorious) Metadata Retention Scheme, which has been lambasted all over the planet for its uniquely intrusive qualities and subversion of basic civil expectations of a democratic state.

Moreover, the #JournalistInformationWarrantScheme has critical flaws and these prevent it acting as an effective protective measure, despite the strength of the oversight mechanisms that legislators have tried to draft in. 

One of the key problems - as identified by MEAA, is an outdated and curiously narrow definition of who is a journalist, which relies on salary rather than product; due to the current state of media employment conditions very few media workers can be identified under this overly-narrow definition. 

Subsequently, that limited authoritarian notion of who is a journalist also places an extra burden on independent scrutineers, charged with defending the privacy of media workers; resultantly case-by-case they must also combat such self-serving, legalistic interpretations of the definition of a journalist.

Notably, when it comes to tax-related surveillance warrants, that definition of "journalist" opens right up, thus enabling numerous agencies to, again, surveil 'every man and his dog'. 

Even Switzerland, which has marketed its IT innovators on the pretence of its neutrality and confidentiality, has signed a data-napping agreement on the grounds of tax avoidance. 

[In relation to the only other (and better-known) Swiss data-sharing agreement - counter-terrorism data isn't sharable but Swiss authorities can compel Switzerland's companies can be called upon to share information to aid in the domestic investigation of foreigners.]

Nonetheless, if the definitions of who is a journalist or identification of journalists was harmonized (perhaps via the existing Press Card system), the #JournalistInformationWarrant schedule could potentially comprise a good template upon which to build a protective regime of independent scrutiny for the interception of journalists, and their communications and data.

The Journalist Information Warrant Scheme has been amended a lot of times (twice in 2019 first quarter) but it still urgently needs important changes. This would not be enough, in itself, to stop raids such as those wielded against Annika Smethurst or the ABC, but it could incentivize and simplify a broader roll out of a protective JIW-like mechanism for media workers. This mental and ethical hurdle is the biggest turning point for authorities, in conceptualizing the right for journalists to maintain a work capacity to meet their legal requirements of confidentiality.

In the first instance those provisions - as a part of this act, would need to be honed. It could then also be used as a regulatory policy template for journalist protections within the context of the delivery and tenor for other laws. Such a template - or "schedule", as an overarching legislative media shield, could function as a sole schedule effective for  all legislation.

Australian Metadata Retention Act Journalist Information Warrants - a short introduction

Journalist Information Warrants comprise a small schedule in the back of the Telecommunications(Interception and Access) Regulations 2017 Act and works in tandem (to protect some journalists)with the Australian Metadata Retention Act. It has potential as a protective civil rights shield to work in tandem with other laws as well.

Originally the Act permitted 81 agencies to access Australian citizens' data (including Australia Post and local councils) and about 5 years later, under inquiry, access was reduced down to about 21 government agencies.

There are inherent difficulties in turning to the public calling for protection of journalists in Australia due to the highly differential quality of 'media content' that is visible. 

Increasingly, journalists are less focal in 'media content' than provocative commentators, and there is a lack of differentiation between the various work-types and roles in media.

While commentators might like to lay claim to being journalists, 'journalists' work to a strict code of conduct, must be accountable to the public via adherence to some form of company or industry regulatory system, and, commit to a process position of relative impartiality.

Also, just as it is encapsulated in advertising law, journalism content (i.e. news content) must be devoid of conflicts of interest, and opinion, and, readers must be able to be visibly differentiate it from advertising and comment - markings, sub-titles, headings, attribution all need to be extremely clear.

None of these professional distinctions are today made particularly clear to readers/media consumers, and this is an erosive workplace pattern in the presentation of media content across platforms that is becoming more common. Ultimately, that is detrimental to journalists, to the availability of news roles, and, it erodes public trust in the terms journalism and news. 

{So, to be clear, the term 'journalism' I am using in this post refers to the strict sense of news and current affairs, which is specifically aimed at supporting a democratic societal function.}

Authorities face a likewise complex task in recognizing actual journalism, and journalism processes.

With the number of journalism jobs spiralling into the commentator-abyss, it is not very surprising that authorities can turn to a conveniently narrow definition. Authorities' narrow definition of a protectable journalist means they seldom need to seek a special Journalist Information Warrant to spy on journalists.

The story does not have to be about classified information to need protection of their processes. In the last month alone, the public has seen police convicted of supplying public third parties (an abusive ex, more specifically) with privileged intelligence. 

Were I, as a reporter, to be writing about a relatively or seemingly innocuous issue - i.e. not a grand Snowden-level leak but say, a construction deal, or a local council corruption matter, or some comparatively (in the global scale of newsworthiness) benign issue that may cause PR damage to a bad company, I too could easily have my privileged, personal, identification data leaked or sold to any interested third party.

(This of course has happened to me, and many other women, before. That leaking or gifting of women's data is called #LoveInt.) 

If we just momentarily glance back at that huge, global scale of giant newsworthy issues to draw from - private investigation agencies tasked with strategic intelligence contracts routinely double dip, selling data initially collected under legitimate aims.

This common but duplicitous practice - for example - brought the US Assange prosecution into question; the Ecuadorian Embassy's security agency had been selling to US authorities, information obtained in the course of their contracted work.

(My Twitter followers will be aware of these story references, I won't link to them here but if anyone wants to know more they can follow my unofficial research account @NewsNResearch.)

Since the commencement of the Australian Metadata Retention Act, Australian authorities have boasted at the Senate's Estimates Committee hearings that few #JournalistInformationWarrants have been needed.

Even the Australian Federal Police have gotten into trouble for not knowing it was necessary - realistically, how could they? But, how realistic is it for an agency to already know that a 3rd party they wish to obtain the data of, or, even a first party to a warrant, is a media worker?

How would a police officer or a lawyer (completely different skillset) even know what journalism or media work is? Worsening this police methodology conundrum, news definitions, salaries, and tasks are today highly complex and variable.

One clearer and easier way to define a journalist would be to require registration for an Australian Press ID card.

This was managed by the Australian Journalists Association before MEAA absorbed it.

MEAA is now responsible for the press ID card system. However, with MEAA acting as a professional association and an industrial advocate, this obvious solution to the intrusions posed by authorities' surveillance, would not be especially popular with the conservative government's union-busting stance.

Here is a little bit of an analysis I have written previously about it.

You can see the ulterior aim of the #JournalistInformationWarrant's narrow journalist definition in play as it is juxtaposed against the alternative broad use of 'journalist' definitions relating to tax - which are far, far more inclusive. 

Thus journalist surveillance can be conveniently eased through current legislative protections. 

I will be writing more about Journalist Information Warrants - this is just a short introduction. I have to apologize for this preliminary posting - I have had a curious amount of trouble with my internet connection this morning, which turned a short post into an epic battle. So it will be subject to revisions and I will pop in the relevant links a bit later after the radiowaves free-up a bit.

Cheerio, Liz.

Currently a wide variety of definitions are utilized by the government, depending on the nature of legislation. A significant number of social texts exist detailing negative impact of restrictive defining criteria on journalists embodied in the “ASIO Act; Foreign Fighters Act; and Data Retention Act”[1]. 

The variability of government legislative definitions of a journalist in the case of the aforementioned national security laws, enables more inclusive opportunities for government collection of data by reducing the number of people defined as journalists[2]. 

However, in contrast, ASIC treasury journalist definitions are quite inclusive, thus allowing more media workers to be surveilled with a view to collecting taxes and levies. Both definitions effectively maximize available data. Key stakeholder suggestions for the reform of the term of journalist, and for a uniform definition drove a parallel reform recommendation from the 2018 Senate Economics Legislation Inquiry[3]. 

Journalist Information Warrants facilitate collection under the auspices of national security[4] embodied in the three aforementioned national security acts[1] but is contained in the Telecommunications (Interception and Access) Regulations 2017 Act. This act, and the Data Retention Act[2015], have been subject to several amendments.

Footnotes:

[1] Pearson, M. & Fernandez, J. 2019, Surveillance and National Security ‘Hyper-Legislation’: Calibrating Restraints on Rights with a Freedom of Expression Threshold, Chapter 3, in Lidberg & Muller, 2018, In the Name of Security Secrecy, Surveillance and Journalism, Anthem Press, London.

[2] MEAA Summary of submissions describing journalist definitions to: Joint Parliamentary Committee on Corporations and Financial Services (inquiry into whistleblower protections, 2017); Select Committee info the Future of Public Interest Journalism; Senate Standing Committee on Economics Legislation (inquiry into the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017; Parliamentary Joint Committee on Intelligence and Security (National
Security Legislation Amendment, Espionage and Foreign Interference) Bill 2017; MEAA, 2018, Whistleblower Protection, Pressfreedom.org.au on Medium, accessed 17/4/19 one page accessed 17/4/19 https://pressfreedom.org.au/whistleblower-protection-767bf02feb4

[3] Footnote [iii] Report of the Senate Standing Committee on Economics Legislation inquiry into Treasury Laws
Amendment (Enhancing Whistleblower Protections) Bill 2017, 2018, Parliament of Australia, March 22, in
aph.gov.au/parliamentary_business/committees/senate/ecpmp,ocs/whistleblowerbill2017/report in [7] MEAA, 2018,
Whistleblower Protection, Pressfreedom.org.au on Medium, accessed 17/4/19

[4]Hardy, K & Williams, G. (2016) Australian Legal Responses to Foreign Fighters, Criminal Law Journal, Griffith University Research Repository,  one page accessed 2/5/19 www.research-repository.griffith.edu.au/ 

Tjiwarl Country Appeal against Yeelirrie Uranium Mine Approval Fails

 ###################### PLEASE BE AWARE THAT

THE FOLLOWING STORY MAY CONTAIN IMAGES

OR NAMES OF DECEASED PERSONS. ################

With respect.


Continue to story below...

CCWA has lost the appeal that they were waging against the Yeelirrie uranium mine on behalf of the Tjiwarl Elders and Traditional Owners. Ironically, the appeal was against the present state Labor government, which had nothing to do with the approval.

The case rested on one of the conditions of the Environmental Protection Agency's report on the project, which said that there was a risk the mine could kill off species of stygofauna that are unique to the area.

The appeal challenged the ministerial power of veto over the 2016 recommendations of the Environmental Protection Authority.

Tjiwarl Traditional Owner Vicki Abdullah said despite the loss of this, their second appeal, that the Tjiwarl group's position on the uranium mine's operations was unchanged. She added that they would be making plans for the next step in their long-running battle to preserve the area.

Tjiwarl Traditional Owner Vicki Abdullah outside WA Supreme Court

Last year Ms Abdullah commented that the mining of uranium is especially problematic for the local Aboriginal nations due to its potentially deathly effects. This contrasts their position on an existing local gold mine, and, a new iron ore mine that last month got the go-ahead from surrounding nations.

Western Desert nations were witness to England's nuclear bomb tests in the cross-border region in 1953. A 1980s Royal Commission into the high rates of cancer in those nations and among the Australian service personnel who worked on the tests, found England had told the Australian government that the test would be about a third of the strength of the bomb that they actually tested.

Despite the horrific revelations of culpability from the Royal Commission, England fought and refused reparations. They denied responsibility for the bomb being 3x the strength that the Australian government agreed to and also claimed that victims couldn't prove that their cancers were caused by Maralinga's radiation.

Contrary to popular belief, to the nations local to the project Yeelirrie means place of death. That indicates the cultural sensitivity of the area. For many Australian Aboriginal nations the use of the name or image of a deceased person is prohibited under cultural law. 

To date there has been no sacred site litigation in relation to Yeelirrie's connection to the Seven Sisters Songline, according to pro-country anti-nuclear campaigner, Mia Pepper.

The Seven Sisters Songline - one of the most sacred sites in Australia in multiple nations' cultural beliefs. 

For overseas readers, there's more on Aboriginal Songlines, here...

And here, is an hour's program on the Seven Sisters Songline, 
and it features the moving singing and stories of the NPY ladies:

In 2017 a WA state Liberal party environmental protection minister signed off on an approval for the project, despite it still not countering the potential ill-effects on the unique stygofauna.
(I wonder if this video influenced his decision...)

The punchline was, that he granted that final approval two weeks before the election, when his re-election campaign was at full velocity. He lost, but unfortunately for the little stygofauna, both a Labor win and an immediate ban on new uranium mines was insufficient to protect Yeelirrie from possible harmful effects of uranium mining. 

Labor's instant ban was a great vote winner, but not effective retrospectively.

Evidently, WA's Labor government was also not as gutsy as Kyrgyzstan's; Kyrgyzstan in May this year implemented an immediate ban on uranium mining, including those mines already approved and in production. (Though Kygyzstan has not been sued for shutting their 1 struggling mine down, WA's current Environmental Protection minister said he is too scared that the presently suspended uranium operations would send the state broke if they ever sued for damages about loss of income from the ban.)

WA Labor's uranium ban does not even prohibit uranium exploration that according to uranium exploration comanpies' and ALP monthly spin, is going from strength to strength.

Strangely all this occurred irrespective of 2 out of the 3 uranium miners in WA saying uranium production and processing simply isn't economic right now and that there is no indication it will be in the future.

The crux of the latest court finding suggests that current protections embodied in the environmental protection laws are not absolute. 

The background to the issue is that in the resources sector there has been quite a bit of lobbyist agitprop circulated to empathetic publications about Australia's purported slow approval process, and our 'high level' (cough, cough, inaccuracy) of environmental activism. (about as accurate as the number of WA jobs promised from the project - if uranium ever becomes financially viable again)

The recent national Liberal election campaign saw yet another minister for environmental protection sign off on another approval - a federal one for the very same project. 

So, there was a fuss and amid the press scrimmage her colleague Matthias Cormann plonked Price right in it by revealing in plain words how long ago she had approved the project, which suggested that she had hidden it for a busy news day.

Subsequently, when the Liberal party were re-elected to the federal government, she was quietly slipped into a different portfolio.

This all occurred whilst the Tjiwarl appeal was in process.

The director of CCWA Piers Versteegan complained that the possible extinction of any species, regardless of size or significance, contradicts the guiding principle of the state's Environmental Protection Act. 

His concerns echoed an EPA ruling from 2016 that stressed the unique importance of the subterranean fauna of the Yeelirrie region.  In an interview with news agency AAP at that time, the EPA Chairman Tom Hatton said that the risk to the stygofauna was just too great and not mitigated by the project proposal.

The former WA minister for protecting the environment (whose name probably no one will remember by the time the Stygofauna are extinct) simply said there hasn't been enough research done to find the same subterranean fauna elsewhere in Australia's vast expanse and they probably exist somewhere.###

Below is a recording of Versteegan explaining the case outside the Supreme Court of WA, at the launch of CACV 26/2018 - Conservation Council of Western Australia v Dawson