Home Affairs and AFP suggest new way of uncovering leaks without journalist raids

The Australian Federal Police and Home Affairs Department have suggested a new way of finding out who leaked information to journalists, as controversy over the clash between Australia's national security laws and press freedom reignites.

A coalition of media organisations - including Australian Community Media, the publisher of this website - has been pushing for a contested warrants scheme since the NewsCorp and ABC raids last year.

Under such a scheme, the Attorney-General would have to approve warrant applications for journalists and media organisations, journalists would be notified of the warrant and have the chance to fight it in a legal proceeding before an independent third party.

However in a joint submission to parliament's security and intelligence committee's inquiry on press freedom, the AFP and Home Affairs said such a scheme would compromise the efficiency of warrants, and thus their ability to investigate crimes, as police would lose the element of surprise in executing search warrants.

"[A contested warrants scheme] would necessarily alert a person of interest - potentially including a suspect - to the existence and particulars of a law enforcement investigation, and may provide an opportunity to destroy evidence, or relocate evidence to another location or jurisdiction," their submission reads.

"In the context of national security information disclosures, this could highlight the existence of a security breach and draw attention to the existence and whereabouts of insecure material."

Instead, the department and police body suggested a "notice to produce" framework could be set up under the Crimes Act, as an "additional information gathering method" for police investigating leaks to the media.

Such a framework would not allow police to access the computer systems of media organisations, as the organisations themselves would be responsible for collecting and producing the documents.

"It would be a less intrusive and more collaborative method of evidence collection, while ensuring that law enforcement agencies remain able to obtain a full picture of the facts and make informed decisions about criminal investigations," the submission said.

"This would offer an alternative to executing a search warrant in person, give parties more flexibility to serve and produce material (such as electronically where appropriate), and provide an opportunity for professional journalists and media organisations to put forward any strong, countervailing arguments to not produce material pursuant to such an notice."

However the journalists' union, the Media Entertainment and Arts Alliance, said the arguments against a contestable warrants scheme were "nonsense".

"The ability to contest warrants is not about placing journalists above the law. It is about reforming bad law," chief executive Paul Murphy said.

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It comes as the ABC announces it will not pursue further legal action to prevent police from accessing documents related to its Afghan Files investigation.

The Federal Court ruled last week the AFP's execution of a search warrant on the ABC's Ultimo headquarters was valid.

In a statement, ABC managing director David Anderson said the outcome of the case "demonstrates the urgent need for law reform to ensure professional journalism and whistleblowers are appropriately protected".

After the twin raids last year and an international firestorm over Australia's eroding press freedom, the Home Affairs minister issued a ministerial direction to the AFP, telling it to exhaust all other investigative avenues before pursuing journalists.

The Australian Federal Police and Home Affairs Department say a contested warrants scheme would foil their investigations, and suggested a new "Notice to Produce" framework instead. Picture: Jamila Toderas

The Australian Federal Police and Home Affairs Department say a contested warrants scheme would foil their investigations, and suggested a new "Notice to Produce" framework instead. Picture: Jamila Toderas

This story Home Affairs and AFP suggest new way of uncovering leaks without journalist raids first appeared on The Canberra Times.