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.