Fact Check: Use of metadata in relation to journalists
Release Date: Saturday, February 13 2016, 11:50 AM
The AFP is aware of a recent statement made by the Media, Entertainment and Arts Alliance (MEAA), claiming that it “is trawling the metadata of journalists and we know that because when we met the federal government representatives and the federal police to discuss our concerns about the metadata legislation, the AFP admitted that they had accessed the metadata of journalists 13 times in an 18-month period in an effort to identify the source of a published story”.
This is not an accurate description of the comments made.
The AFP has not accessed or applied to access the metadata information belonging to any journalist since 13 October 2015, when new legislation came into effect.
Legislation surrounding the Telecommunications Act prevents the AFP from publicly releasing specific information to provide further clarity surrounding this inaccurate claim.
The comments made by Commissioner Colvin in March 2015 outlined that in the previous 18 month period, the AFP had received 13 referrals relating to the alleged unauthorised disclosure of Commonwealth information in breach of section 70 of the Crimes Act.
In the overwhelming majority of these investigations, no need was identified to conduct a metadata telecommunications inquiry on a journalist. AFP requests for accessing a journalist’s metadata are rare.
AFP investigations relating to breaches of Section 70 of the Crimes Act 1914 are not about targeting journalists. The statutory offence relates to a Commonwealth officer disclosing Commonwealth information without authorisation.
As journalists are not Commonwealth officers pursuant to the Act, they cannot be charged with an offence relating to this section.
Accordingly, they are not the subject of the investigation.
The aim of AFP investigations into Section 70 offences is to identify the source of the disclosure, and then determine whether they had the appropriate authority to release that information.
AFP investigators are required to assess all the relevant facts in every matter. This includes enquiries into the classification of the information concerned, how it was handled and who had access to it.
As journalists may publish and/or broadcast Commonwealth material that has been released without authorisation, attempting to identify the source of this release from their contact with the journalist is a clear and legitimate avenue of enquiry for investigators.
Since 13 October 2015, in order to obtain metadata to help identify a journalist’s source, AFP investigators are required to obtain a warrant authorised by a judicial officer. No such applications have been made since the new legislation came into effect.
Prior to an application for a warrant, a Public Interest Advocate must be notified of the pending application and given the opportunity to make submissions regarding the application, including any conditions or restrictions that might be imposed on authorisations made under the warrant.
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