Australia’s annual press freedom dinner took place on Friday night. While it should be an occasion to celebrate journalism and the free democracy we live in, it was somewhat sullied by the revelation that the Australian federal police had unlawfully accessed a journalist’s phone records.

The question of the night was: “Is it you?” There was even talk of a sweep being prepared with odds on which journalist was the victim.

In many European nations and in the United States, lawmaking is done narrowly, within the confines of robust constitutions and charters of rights. In Australia that culture does not exist. Instead, the executive branch seeks as a matter of course the broadest and most unfettered powers.

The admission by the AFP that it accessed a journalist’s metadata to hunt down a source is not surprising. The agency’s actions are the unfortunate confluence of an aggressive culture of lawmaking that extends far beyond the agency’s failure in this case.

What we know from Friday’s press conference with the AFP commissioner, Andrew Colvin, is that in the last several months an internal investigation was established to try and determine a journalist’s source. It appears this relates specifically to a matter about the AFP.

During that investigation, a journalist’s phone records were accessed across a period of about a week. Under amendments to telecommunications laws in 2015, this should have required the AFP commissioner or a senior manager to seek a “journalist information warrant”. This didn’t happen, which meant the AFP had acted unlawfully.

For reasons we do not yet know, this error has only been recently discovered. The AFP notified the commonwealth ombudsman on Wednesday, and her office is now conducting an investigation.

The journalist has not been notified. They may never be.

This is a clear failure of the AFP’s policies. Since the warrant system was imposed it has produced a plethora of Powerpoint presentations and other internal AFP material to train staff about the necessity of these warrants. Clearly this training has utterly failed.

But it’s also a broader failure of the law and how it affects the rights of all Australians, and there are some steps that should be taken to address that.

The most critical failure is the long-standing offence that criminalises any disclosure by a government whistleblower. This section of the Crimes Act makes it an offence for any information, irrespective of the public interest, to be disclosed to a journalist. Dozens of referrals are made to the AFP from government agencies each year asking them to investigate. It is often used enthusiastically against reporters and their sources who write politically sensitive matters, such as about immigration policy.

The sinister-sounding “head office investigations” unit task officers to pore through journalists’ sources for cases they deem to take up. There have been consistent calls by the Australian Law Reform Commission to wind back this offence. Even the UK has amended its own version of this law to temper it.

The breadth of this offence is what gives AFP officers the lawful justification to access journalists’ phone and email metadata, combined with the very low thresholds for access under telecommunication laws.

The confluence of these laws are so broadly crafted that NSA whistleblower Edward Snowden has called out the Australian government. “Police in developed democracies don’t pore over journalists’ private activities to hunt down confidential sources,” he told the Guardian in 2016.

“The Australian federal police are defending such operations as perfectly legal, but that’s really the problem, isn’t it? Sometimes the scandal is not what law was broken, but what the law allows.”

This observation remains relevant. The new data retention laws trigger this section of the Crimes Act because they impose no obligation on the government to only investigate national security matters. It’s whatever they choose.



I have a personal stake in this. Two years ago the AFP accessed my phone and email records in the course of an investigation into sources for a story about the government’s asylum seeker turnback operations. In that case, they didn’t need a warrant in the first place. Outrageous as the present case is, it would not even have been an issue but for the 2015 warrant requirements that Labor pushed for to support passage of the data retention bill.



But it’s an issue that affects all of us. It should be a rallying cry for journalists to push back against the sweeping dragnet of surveillance that has been imposed on us. Journalist information warrants are still an extremely weak accountability measure. The public advocates that represent us do so in secret. And a convenient workaround is easily achieved because the law does not prohibit law enforcement agencies targeting the source’s phone or email records, rather than the journalist’s. This is major failure that does not exist in a similar UK law to protect journalists’ sources.

The commonwealth ombudsman has confirmed it is investigating the circumstances of the breach. That’s unlikely to be enough. The ombudsman’s processes will be mired in secrecy, justified by the broad gag laws that exist in our telecommunications interception laws.

Those same laws will offer a convenient prop to hide behind for the AFP as well. The agency will no doubt invoke them endlessly in Senate estimates and in future press conferences to avoid answering questions.

One way to establish what happened is a sweeping parliamentary inquiry into how this reporter’s metadata was accessed, and how the AFP is conducting investigations into journalists’ sources more broadly. An inquiry with a similar scope led by the parliamentary intelligence committee almost happened during the data retention debate, but was quashed after the journalist warrant requirements were agreed on. None of the law enforcement agencies in question wanted to answer the awkward questions that are now being asked about how they handle journalists’ personal information.

It is worth noting the AFP has made a positive decision to be proactive in disclosing this failure. But would the state and territory police forces which also have this same level of access be as forthcoming? This could easily happen with any of the 20 other agencies that can access metadata. Short of a spot inspection by the commonwealth ombudsman, it might never be detected.

An inquiry could compel all these agencies to set out exactly how they have been handling journalists’ metadata. But it could also examine the broader question around access to metadata. Journalists are a privileged class in the world of metadata access. We get our own warrants. Nobody else gets that protection, but perhaps they should.

During the febrile drum-beating of Tony Abbott’s reign as prime minister, real debate about privacy and whether Australians valued it was swept aside amid cries of terrorism and child abuse. The data retention amendments sailed through under this guise, with little debate in parliament about how it would infringe on not only the privacy of Australians, but also their ability to communicate freely with journalists on matters on national importance without fear of retribution.

As many critics said at the time, and as even the law expressly set out, it was never about just national security. The data retention amendments imposed no such restriction on law enforcement and intelligence agencies. The AFP’s blunder should make that loud and clear for everyone.

Perhaps it’s time for the debate around Australian’s privacy that we never really had.

Contact Paul Farrell securely using the Signal messaging app on +61 457 262 172 or using the Guardian’s Securedrop server.