The Australian federal police has this week admitted that it sought access to my metadata in pursuit of my sources.

In a submission to the privacy commissioner, it revealed it had sought “subscriber checks” and other forms of email checks relating to me as part of one of their investigations.

Federal police admit seeking access to reporter's metadata without warrant Read more

What’s most extraordinary is that it was entirely lawful for the AFP to access my phone and email records. And that’s a real problem for journalists and their sources in Australia.

It’s become a sadly normal reality that journalists’ sources can be targeted in Australia in an effort to hunt down whistleblowers. Over the years, under both Labor and Coalition governments, sensitive stories by journalists that embarrassed or shamed governments have often been referred to the AFP.

And almost always it’s about politics. It’s not about national security. It’s about stopping embarrassing leaks that tell uncomfortable truths about power in Australia. Quite recently the Australian’s Greg Sheridan had his exposé about the draft defence white paper referred to the AFP for investigation. Last year the source of a story by Fairfax Media’s Michael Gordon about radical reforms to citizenship laws were also subject of a referral to the AFP. Has the AFP also sought to access their phone and email records?

The answer is unclear but it’s certainly possible. However, this is the first time the AFP has ever made such an admission in Australia. They’ve acknowledged generally that they made requests for journalists’ metadata in the past – and said they were rare – but never in a specific case. There are strict laws that prohibit the disclosure of information about such requests under the Telecommunications (Interception and Access) Act 1979.

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The AFP’s investigation into my sources arose from a news report into the government’s asylum seeker policies and Australia’s unlawful incursions into Indonesian waters. I requested access to files held by the AFP in this investigation and then complained to the privacy commissioner about the lack of details the AFP released in these files. The AFP’s admission was disclosed in the course of that privacy complaint.

From the AFP’s point of view, it has done nothing wrong. As it has indicated in its statement, it has sought to undertake investigations within the scope of the law. It has “sought to identify the source of the disclosure, and then determine whether they had the appropriate authority to release that information”.

As I’ve mentioned before, the offence that relates to “unauthorised disclosures” of information by commonwealth officers is exceptionally broad. There are no public interest considerations or requirements to demonstrate harm from disclosures. It can apply to all and sundry.

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There are very limited avenues of appeal to resolve these kinds of privacy violations and interferences with press freedom. Australia has no broad constitutional framework like the US that protects freedom of the press. It has no regional human rights framework like EU nations that can be drawn into domestic law in the way that has been done in Britain.

A complaint could be lodged with the Commonwealth Ombudsman about the conduct of the AFP, but it’s hard to see what grounds such a complaint could be based on if the AFP was operating within the law. Another complaint could be initiated with the privacy commissioner but it would be limited to the narrow grounds of review set out in the Australian privacy principles, which have broad exemptions for the activities of law enforcement agencies.

It’s not right and it shouldn’t be normal. But unless the law changes, these kind of investigations will continue.