On 26 August, the Parliamentary Joint Committee on Intelligence and Security (“PJCIS”) tabled a report titled “Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press” (“the Report”). The inquiry was initially referred to the PJCIS on 4 July 2019 by Attorney-General, the Hon Christian Porter. In a July 2019 media release, the Chair of the PJCIS, Mr Andrew Hastie MP, said “the government has referred this inquiry based on concerns raised in relation to recent search warrants executed on members of the press, and the issue of balancing national security with the freedom of the press”. The Report proposed 16 key recommendations for reform which focus on areas of improvement in regards to public interest protections and transparency.
Recommendation 1 proposes that amendments should be made to the operating procedures and practices of the Australian Federal Police and other Commonwealth law enforcement agencies with investigatory powers to advise journalists and media organisations when they are no longer persons of interest provided that doing so would not jeopardise the future of the operation.
Recommendation 2 proposes that the current role of the Public Interest Advocate (PIA) be amended and expanded, particularly the PIA’s role in reviewing journalist information warrant applications. Furthermore, the Report proposes new statutory qualifications for PIAs which should be set out in primary legislation. These qualifications include that a PIA must either be:
The Attorney-General’s Department is due to conduct a review of all secrecy provisions in Commonwealth legislation according to the PJIS’s recommendation in a previous report, the Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017. Recommendation 6 emphasises that the question of whether the relevant legislation adequately protects public interest journalism should be a specific consideration of the upcoming review. Recommendation 7 recommends that the Government consider whether defences for public interest journalism should be applied to other secrecy offences within relevant Commonwealth legislation. Furthermore, Recommendation 8 proposes a mechanism through which journalists and media organisations, for the purpose of public interest, can consult with the originating agency of national security classified information without the threat of investigation or prosecution.
Recommendation 9 recommends that the Government formally respond to an earlier statutory review, the Review of the Public Interest Disclosure Act 2013: An independent statutory review conducted by Mr Philip Moss AM. The recommendation lists certain considerations to be included in the formal response including consideration of amendments to the Public Interest Disclosure Act 2013 (‘PID Act’), particularly the public interest test and reprisal protection provisions and consideration of how to improve alignment between public and private sector whistleblower schemes. Furthermore, Recommendation 10 recommends amendments to the PID Act which will add new procedural requirements to the process of making a Public Interest Disclosure.
The recommendations above are accompanied by complementary recommendations for new recordkeeping and reporting regimes. Recommendation 3 proposes additional recordkeeping and reporting requirements to complement the expanded role of the PIA proposed in Recommendation 2. Recommendation 4 recommends that, at minimum, statutory requirements for recordkeeping and reporting requirements relating to the role of the PIA should contain equivalent requirements to the pre-existing requirements within the Telecommunications (Interception and Access) Act 1979 as well as the additional proposed requirements (Recommendation 2). Recommendation 5 recommends new recordkeeping and reporting requirements to implement annual reporting of information regarding warrants issued in relation to journalists or media organisations. Recommendation 11 recommends that the Government provide for “the mandatory reporting of aggregated statistics, related to numbers and timeframes of all Public Interest Disclosures, to be made to the Parliament every six months by the Attorney-General”.
The Protective Security Policy Framework (PSPF) is a government policy intended to ensure entities implement best practices for protection of their people, information and assets, both at home and overseas. The PSPF was updated in 2018. Recommendation 12 recommends that the Auditor-General prioritise the adoption of the 2019-2020 potential audit identified by the Australian National Audit Office which will assess the effectiveness of the Attorney-General’s Department in promoting the PSPF and the extent to which selected entities adhere the the PSPF’s core requirements. Furthermore, Recommendation 13 recommends that training which focuses on the application of PSPF requirements for sensitive and classified information be made compulsory for all relevant Commonwealth officers and employees.
The last three recommendations of the Report outline three proposed avenues of future inquiry. Recommendation 14 proposes that the Inspector-General of Intelligence and Security conduct a preliminary inquiry into the application of national security classifications in intelligence agencies. Recommendation 15 proposes that the Australian Government take this opportunity to consider the “harmonisation of State and Territory shield laws through (the) National Cabinet, with relevant updates incorporated to expand public interest considerations, and to reflect the shifting digital media landscape.” Lastly, Recommendation 16 recommends a high-priority governmental review focussed on cross-departmental promotion and training of a uniform Freedom of Information culture. The purpose of the review will be to improve consistency in the application of processing requirements and exemptions allowed under the Freedom of Information Act 1982.
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Media Release: Committee to scrutinise the impact of the exercise of law enforcement and intelligence powers on the freedom of the press (Parliamentary Joint Committee on Intelligence and Security, 5 July 2019)
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