Homes Affairs and the AFP still want to keep the power to raid homes or offices by seeking a warrant, saying the “notice to produce” laws should only operate as an alternative.
“Any framework should not limit the ability to apply for law enforcement to apply for a search warrant in those circumstances,” the submission to the Parliamentary Joint Committee on Intelligence and Security reads.
“However, as conveyed by the Ministerial Direction, the Australian Federal Police are expected to exhaust alternative investigative actions prior to undertaking investigative action in relation to a professional journalist or media organisation when investigating the unauthorised disclosure of material [made] or obtained by a current or former Commonwealth officer.”
The press freedom inquiry was sparked by controversial AFP raids of senior News Corp journalist Annika Smethurt’s home and the Sydney headquarters of the ABC.
The Home Affairs and AFP submission rejects a proposal put forward by media organisations and press freedom activists for a “contested warrants process”, where the media would be allowed to argue against a warrant in a court hearing before it is issued.
“Implementing a mandatory procedure by which the search warrant can be contested before it is issued has the potential to undermine the efficacy of such a warrant, and the ability of law enforcement or intelligence agencies to effectively investigate criminal activities,” the submission says.
“It 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.”
The parliamentary inquiry has been awaiting the joint submission for months, with members of the PJCIS saying it has held up the committee from reporting its findings.
Labor member of the committee, Mark Dreyfus, on Friday morning questioned Department of Home Affairs first assistance secretary Hamish Hansford on why it had taken months to hand down the six-page submission.
“The balance of evidence before the press freedom inquiry from some individual organisations was promoting the concept of a contested warrant,” Mr Hansford told a separate inquiry into metadata laws.
“It took us some time to work with the Australian Federal Police to explore what a contested warrant would look like.”