The Coalition-Labor deal has been done and the metadata legislation has passed the lower house. Here’s how the measure requiring a warrant in some cases will work

The Coalition struck a deal with Labor to require Australian police and security agencies to seek a warrant before accessing the call logs and other metadata of journalists in certain cases.



Here are some answers to key questions about how the measure would work, including the inclusion of “public interest advocates” in the decision making process.

What are ‘journalist information warrants’?

These are warrants that agencies must seek in certain cases involving journalists. This is a departure from existing access arrangements that allow police and security agencies to obtain metadata from telecommunications companies without a warrant.

When are they required?

The Australian Security Intelligence Organisation (Asio) and enforcement agencies will be required to seek a warrant before accessing the metadata of a journalist – or a journalist’s employer – if “a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source”.

What is a journalist?

The amendment refers to “a person who is working in a professional capacity as a journalist”. The communications minister, Malcolm Turnbull, conceded to parliament on Thursday that the legislation did not specifically define journalist, but he argued the term was well understood. When asked about bloggers, Turnbull said: “The answer is many journalists blog, and if they do it in a professional capacity, then they are covered.”

What is a source?

A source is defined as a person who provides information “to another person who is working in a professional capacity as a journalist” in the normal course of the journalist’s work “in the expectation that the information may be disseminated in the form of: (i) news, current affairs or a documentary; or (ii) commentary or opinion on, or analysis of, news, current affairs or a documentary”.

Who will decide whether to issue the warrant?

This depends on the agency involved. In the case of Asio, the director general of security will apply to the attorney general outlining the grounds for a warrant. Other enforcement agencies will apply to an issuing authority appointed by the government, which may be a judge or a magistrate or a member of the administrative appeals tribunal.

The decision maker must be satisfied that “the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source”. The person must consider numerous factors including “the gravity of the matter” and “whether reasonable attempts have been made to obtain the information or documents by other means”.

Will the warrant application be contestable?

Media industry representatives had been pushing for an opportunity to make their case on warrant applications. It is clear from the amendment that journalists will not be notified that an agency is seeking their metadata, and their lawyers will not be able to make representations before a decision is made on issuing the warrant.

But the government has sought to address press freedom concerns by including a role for a “public interest advocate” to make submissions that would be taken into account.

What is a public interest advocate?

Public interest advocates will be appointed by the prime minister. They may make submissions to the decision maker about any matters that are relevant to issuing or refusing a journalist information warrant. The advocates can also advise on any conditions or restrictions that are to be specified in such a warrant.

Are there exceptions to the journalist warrant process?

The Asio chief is allowed to issue a journalist information warrant directly if the agency has made a request but the attorney general is yet to make a decision.

The Asio chief must be “satisfied that, security will be, or is likely to be, seriously prejudiced if the access to which the request relates does not begin before a journalist information warrant can be issued and made available by the minister”.

Will the warrants be kept secret?

Yes. The legislationmakes it an offence to disclose or use information about journalist information warrants including “the existence or non-existence of such a warrant”. This can attract a penalty of two years in jail.