Committees - Intelligence and Security Joint Committee and Press Freedom

I rise to speak to the Parliamentary Joint Committee on Intelligence and Security's inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. No sensible person who serves in this institution nor any person with an appreciation of our history would discount the importance of a free press to the integrity of our democracy.

It is absolutely vital as a bulwark against tyranny. That principle operates in competition, though, with other really important principles. Those include the importance of all people being equal before the law—that the rule of law must apply to us all if it is to mean anything at all. It also includes a government's responsibility to keep Australians safe from those who would do harm to them or to our nation as a whole. They're all important considerations, and the challenge for any government is in getting the balance between each of those right.

I'm pleased to contribute to the debate on this report on the day that it is presented in this place. In doing so, I would like to acknowledge those members of the Parliamentary Joint Committee on Intelligence and Security who worked really hard to consider submissions from many different groups and to work through what are complex problems in a proactive spirit designed to set this parliament up for good government long into the future. I'd like to thank the secretariat for its hard work. They are a dedicated and very skilled group of people. I'd also like to commend those opposite for the degree to which a bipartisan approach was taken. These are difficult matters, but there was a commendable spirit of cooperation among everybody on the committee in this process.

The inquiry was referred to the Parliamentary Joint Committee on Intelligence and Security in response to public interest arising from the execution of two search warrants by the Australian Federal Police in June 2019. It had evoked discussion among the public about the impact of law enforcement and intelligence powers on the ability of the press to do their job. It's worth acknowledging at this point that many of the concerns that were raised by members of the press at that point in time have already been the subject of action by the government, and I acknowledge those steps that have already been taken. Although those steps are welcome and they have been rightly implemented, nevertheless the committee, in its analysis, saw a number of other opportunities for meaningful reform.

We received submissions from a number of different bodies, but it's worth noting that the submissions we received, either in a documentary form or face-to-face, were dominated by media organisations and academic-style think tanks. There is nothing wrong with that, of course; however, they suffered from an understandable information asymmetry, for want of a better term, with the agencies who need the benefit of these protections. After all, the very complaint that those media organisations were making was that they didn't have visibility on the sensitive information about security that is held by our national security agencies. There is nothing surprising about that. But it's also true to say that the beneficiaries of the protection of our security agencies are ordinary Australian citizens, and they don't tend to be the kinds of people who put pen to paper to write a submission to a parliamentary inquiry or, indeed, to seek the opportunity to present for themselves at our hearings.

I think that's something we should acknowledge more often in the work of all of the committees of this parliament. For all the bluster we hear in this place about vested interests, it's true to say that the interests of regular Australians and the interests of the person pursuing a quiet life can get lost amongst all the groups, of all different types, with an activist agenda.


In any event, the committee worked together very well and has come up with a number of opportunities for the further reform of the law in this field. I want to touch on a few of those. We can improve upon our current regime for the issuing of warrants where they are required to be issued against a journalist. Our recommendations make that clear. We've recommended that the existing role of the public interest advocate, as exists under the Telecommunications (Interception and Access) Act, be amended and expanded to apply to warrants that involve the investigation of unauthorised disclosures of government information where that relates to journalists and media organisations. In recognition of the gravity of the occasions where national security may encroach upon the freedom of the press, the committee has also recommended elevating the qualifications that are required for those people who both serve as public interest advocates and who serve as issuing authorities for warrant applications. We've recommended that it no longer be the case that you can nip down to the local JP or magistrate for a warrant of this kind but that it should be dealt with by people who are exceptionally qualified—at the Queen's Counsel, Senior Counsel, judge or retired judge levels of a superior court. Specifically, we've recommended that all warrants sought by an enforcement agency related to a person working in a professional capacity as a journalist, or a media organisation, should have that higher level of qualification.

While the committee has not acceded to a request that was made by those in the media for an exemption from particular crimes that arise from the disclosure and possession of particular secret information, we've nevertheless agreed that there is an appropriate place for defences to a number of secrecy offences and that those defences should be considered for expansion in certain cases.

It's important that, in considering the role of the public interest advocate, the scope of what they are asked to do is fully understood. The committee has recommended that public interest advocates stand in the shoes of the public's interest in a free press. It's not publicly funding a lawyer to go and act for a journalist in their professional capacity; nor is it a publicly funded lawyer who goes and stands in the shoes of News Corp to argue against our law enforcement agencies. Instead, it's a publicly funded public interest advocate who will stand in the shoes of the interests of you and me in the protection of our institutions by the protection of the principle of a free press. I think that's an important distinction to make, and one that the committee thought was important.

The committee acknowledges that there was a role, at least in the events giving rise to this committee inquiry, for better cooperation between journalists, media organisations and government departments. We've recommended that the government consider a mechanism for journalists and media organisations to better communicate with one another and the originating agency of information that they wish to put into the public domain and that they should get credit for that attempt to constructively liaise with our national agencies so that they have an assurance that they're not going to face prosecution in circumstances where they are genuinely working constructively in the public interest.

The committee also noted the concerns that had been raised about the appropriateness of national security classifications of documents and recommended that oversight bodies audit and inquire into the application and the implementation of the National Security Classification Framework so that we can be sure that there isn't a pattern of overclassification of documents, so to speak. Finally, the committee noted that it is really important that the impact of these recommendations be measurable, so we have suggested that there should be additional reporting measures on the frequency of warrants of this kind being sought, the degree to which the service of the public interest advocate is employed, their level of qualification and the activity in which those public interest advocates are engaged.

This is an important report, and it has been put together constructively by members of the committee. With that, I commend it to the Senate with my fullest endorsement.