“I wouldn’t regard bloggers as journalists … A journalist is for the purpose of this law a person engaged in the profession of journalism.”
Dear Attorney-General George Brandis, I have been a journalist for more than 40 years and I am also a blogger. You hardly ever seem to make any sense, but this time you take the cake in your comments on ABC’s AM earlier this month http://ab.co/1CuNCOp about the law to retain data of journalists and everybody else for two years in the interest of national security. I could go on, but you’ll probably hack my mobile, look at all my emails and send me to Indonesia to be shot by a firing squad.
Oh, to hell with it, I might as well go on. You appear to be pompous, arrogant and never listen to the other side. Your embarrassing interview with Sky News political editor David Speers won him a Walkley Award, but it proved you knew nothing about metadata at the time. (Since then you’ve done your homework, judging by your performance yesterday when the Senate passed the bill.) The Walkley committee said you “agreed to discuss the government’s plan to require phone and internet companies to store ‘metadata’ for two years, but from the outset it was clear that the Commonwealth’s chief law officer either was unable to explain his own policy or did not understand it. As Brandis struggled, David Speers persisted with the same basic question, ‘What is metadata?’ but the senator floundered even more.” For those who haven’t seen it, here’s a link to the interview you bumbled and fumbled your way through: http://bit.ly/1EwZs8y. (Journalist and Lawyer, Richard Ackland, calls Senator Brandis “Bookshelves” in his weekly diary, Gadfly, in The Saturday Paper after more than $15,000 of taxpayers’ money was spent on a second custom-built bookcase to house the A-G’s extensive collection of books and law reports. http://bit.ly/1xfiy2W )
Metadata is simply the electronic trail from mobile phones, emails and the internet which identifies the parties sending or receiving the information. Even though the metadata does not include the content of the communication, police and security agencies can easily track the movements of journalists and their sources. Under the new law passed this week in the Senate, phone and telecommunication companies will be forced to hold the metadata for two years. As part of a deal to get the legislation through parliament, the government struck a deal with Labor, agreeing to amendments allowing a “public interest advocate” to submit an argument for refusing or obtaining a warrant against a journalist, depending on whether it was in the public interest. Labor Senator Jacinta Collins angrily denied Greens Senator Scott Ludlam’s claim the ALP had “caved in” on the bill, but it was passed in the Senate by 43 to 16, with the Greens, Motoring Enthusiast Party Senator Ricky Muir, Liberal Democrat David Leyonhjelm, and Independents Nick Xenophon, Jacqui Lambie, Glenn Lazarus and John Madigan voting against it. Labor combined with the Coalition to defeat more than a dozen amendments by the Greens, and Senators Leyonhjelm and Xenophon, both of whom were eloquent in their opposition to the bill. The amendments would have forced the data to be held in Australia, required warrants for all accessing of the data, and limited the storage to three months. http://zd.net/1BrJZ58
But the catch 22 is that journalist and sources will not be told when the government was trying to get their metadata and the public interest advocate would not be able to talk to the journalists or media organisations. And making matters worse, journalists can be jailed for two years if they discovered and then revealed an information warrant was being sought by the government. Two prominent lawyers, Bret Walker SC, former independent monitor for Australia’s National Security Legislation, and human rights advocate, Julian Burnside QC, told The Australian today the public interest advocates could do nothing more than “sermonising” in trying to protect journalists’ sources. Mr Walker said: “They won’t be arguing a case, they will be sermonising about the freedom of the Press and reminding a judicial officer to be balanced and apply the law.” Mr Burnside agreed, adding: “They will be like a person sitting on a tram backwards.” http://bit.ly/191Gpbg
The journos’ “friend,” the Attorney-General, thought the protection of journalists’ metadata was a “red herring” and “entirely unnecessary.” He told AM last week this “was never about journalists, this was about law enforcement and national security, but in order to put it, put minds to rest that this could affect journalists we have agreed to create a limited exemption in relation to them.”
Prime Minister Tony Abbott also poohed-poohed the need for protection, citing his own experience as a journalist in the 1980s: “There were no metadata protections for journalists and if any agency, including the RSPCA or the local council, had wanted my metadata, they could have just gone and got it on authorisation.” Of course there was no metadata in those days, except basic landline phone records.
The bill threatens journalists and journalism. The only Liberal MP who’s been anywhere near transparent is the Minister for Communications, Malcolm Turnbull, and even he has been trying to play down the threat. In an interview with Tony Jones on Lateline, Turnbull said: “… if you’re a journalist and you are dealing with confidential sources, you – you, the journalist, have an obligation to protect your sources and using encrypted messaging applications and taking care that you don’t leave an electronic trail is very important.” http://ab.co/1GK4heK

Cartoon above courtesy of the brilliant Jon Kudelka. Hope you don’t join me in prison, Jon!
Well, at least the Minister for Communications didn’t call the need for a warrant a “red herring.” And he used to be a journalist – before the internet existed. Senator Scott Ludlam has given Australians tips on how to hide metadata. He told Fran Kelly on ABC’s RN Breakfast: “If it’s good enough for a Communications Minister to be using a messaging ap [Wickr] on his phone that leaves no trace of the messages, then it’s entirely reasonable for me and plenty of other people to be offering advice on how people can protect their privacy on line.” http://ab.co/1GfzeJz Ludlam also repeated a selection of his tips after the Senate passed the bill yesterday to make sure they got into Hansard.
ABC’s Media Watch has covered data retention and what it means for press freedom on two separate episodes this month. In part one of its comprehensive coverage, Media Watch quoted one of the best investigative journalists in Australia, and a colleague of mine on the Nine Network’s Sunday Program, Ross Coulthart. He told ABC Radio National’s Media Report metadata “is the biggest threat to journalistic freedom ever.” It “tells you everything. If you know who I’m calling as a journalist and if you know who’s calling me, and you can put together who that person is and where they’re calling from, who I’m emailing, who I’m getting emails from, you almost don’t need the content of the information, if what you’re doing is investigating a journalist who’s being leaked information.” http://ab.co/1CKYhmE
Even more alarming is a contention from legal expert, Matthew Rimmer, Associate Professor at the ANU College of Law, who told Media Watch in part two of their report, that it would be easy to get a warrant: “I don’t see how this regime protects journalists … In some ways it could make surveillance of journalists the norm …” He also pointed out that because the new law offers up to two years in jail if a journalist reveals that a warrant exists or does not exist, or has been applied for or revoked, it’s “an incredible provision, which really highlights the fact that these amendments do the very opposite of what was promised in relation to press freedom.” http://ab.co/1Bo3Mm9
So back to our good friend, George Brandis, who had this to say about the new law on AM last week: “Media organisations are not the target of this law. The target of this law are criminals and paedophiles and terrorists. I regret that the debate about this law has diverted down this path about journalists for heaven’s sake. Journalists are not the object of the law. This is a law that is, that continues to guarantee the availability to the police, to the law enforcement and national security authorities, essential evidence in criminal and terrorism investigations.” Senator Brandis repeated this numerous times yesterday: “This act is about serious crime … We are not interested in using this complex system to police parking tickets.”/”This is not what this bill is about. It’s about serious crime … That’s its entire purpose.” Liberal Democrat Senator David Leyonhjelm said: “I do not believe him.” Leyonhjelm said it would take time but eventually the authorities would use metadata on things like petrol prices: “I do not look forward to saying ‘I told you so’ when this law is used to pursue illegal dumping, unpaid rates, petrol stations comparing fuel prices. Mark my words however, that is what will happen.” http://ab.co/1Nkt1MP Leyonhjelm’s final words were emphatic: “I condemn this bill.” He was joined in his condemnation by Scott Ludlam and Senator Nick Xenophon. The haughty Attorney-General lectured both of them, and every time he mentioned Ludlam’s name, he almost spat it out.
Let’s keep this simple. Journalists, and bloggers like me, write stories about politics and the media and literature and racism and human rights and try to back up our arguments with facts after a lifetime of journalism. Metadata will make it difficult for investigative journalists like Ross Coulthart, Hedley Thomas, Kate McClymont and a host of others, to pursue their profession. They may be forced to head to underground carparks and attempt to get “Deep Throats” to confirm their stories (reporters, please turn off your mobile phones!). The Editor-in-Chief of The Sydney Morning Herald, Darren Goodsir, wrote this week about a 1998 meeting in a darkened playground in a public school with a senior NSW police officer. The officer showed Goodsir a printout of calls he had made to police headquarters and police had made to him – trying to stop leaks against then police commissioner Peter Ryan. Goodsir was gobsmacked (and innocent). http://bit.ly/1FCYzhv
It also worked with Watergate in the early seventies, but in this brave new world of electronic journalism, it seems quite an anachronism. We want to catch the terrorists, too, and 9/11 might not have happened if the US security agencies actually paid attention to the Al Qaeda threat. The 9/11 Commission Report found the domestic agencies never mobilised: “They did not have direction, and did not have a plan to institute. The borders were not hardened. Transportation systems were not fortified. Electronic surveillance was not targeted against a domestic threat.” The recently released joint report by the Federal and NSW governments into the Lindt Café Siege found there were no major failings of intelligence or process in the lead-up to the siege, in which Man Haron Monis and two of his hostages died. Prime Minister Tony Abbott said instead the report gave the “inescapable conclusion” that the system as a whole let the community down. Abbott said each time Monis came to the attention of authorities during his 18 years in Australia he was given the benefit of the doubt but that each individual decision was reasonable. http://bit.ly/1C6xVcV Will this new law stop the terrorists or will it just stifle press freedom? Senator Scott Ludlam believes the bill will not target the terrorists, but millions of Australians: “The government won’t disclose the costs of the scheme, is silent on the risk of unauthorised disclosure, and at no stage has been able to point to evidence that collecting the private records of 23 million non-suspects will keep people safer or reduce the crime rate.”
I am looking forward to hearing what Ross Coulthart has to say about the threats to journalists posed by the law when he gives his keynote address to the 2015 Press Freedom Australia Media Dinner in Sydney on May 1. http://bit.ly/1EEWtZe The theme this year: Press Freedom Under Surveillance. Boy, is it ever!
PS Featured photo of George Brandis at the top is by Andrew Meares (Fairfax)