The Australian federal police have all but confirmed that ABC and News Corp journalists could be charged for publishing protected information after two dramatic days of raids which prompted outrage and drew international attention to Australia’s draconian secrecy laws.
The acting AFP commissioner, Neil Gaughan, held a press conference on Thursday to contain political fallout, denying suggestions the police had waited until after the federal election to execute warrants and claiming no contact had been made with the executive since they informed home affairs minister Peter Dutton’s office when the investigations started.
Gaughan revealed the investigation into the ABC’s report of alleged unlawful killings by Australian troops in Afghanistan began in July 2017 and the investigation into Annika Smethurst’s report of plans to extend powers to spy on Australian citizens began in April 2018 after complaints from relevant department heads.
Gaughan said that “neither the government nor any minister has directed the actions of these investigations”. He said the police had no contact with the minister or other members of the executive since Dutton’s office was notified, a “standard practice” at the start of politically sensitive investigations.
Gaughan said the AFP is a “strong supporter of press freedom” but, in a pointed warning, said that “no sector of the community should be immune” from police investigations into alleged law-breaking, including the execution of warrants.
The AFP have said they are investigating breaches of part 6 of the Crimes Act, which criminalises unauthorised disclosures by public servants, and part 7, which contains offences which can apply to journalists including receiving or publishing “official secrets”.
Gaughan said the police are investigating the fact that documents marked “secret” and “top secret” were published, confirming that “it is an offence to actually have that particular material still on websites” – putting journalists squarely in the frame of potential prosecutions.
He said the fact the documents were published set the two cases “above others” in the scale of the alleged national security breach.
But, asked what the harm of revealing alleged wrongdoing by Australian troops or plans to extend spying laws was, Gaughan said the substance of the reports was “irrelevant” and that the mere fact of disclosure of protected information was a crime.
“The issue of whether or not the public has the right to know is really not an issue that comes into our investigation process,” he said.
Gaughan said police don’t judge whether a complaint was a “good referral or bad referral” but had concluded it was deemed “likely” that offences had been committed.
Gaughan held out hope that the public interest could be considered at a later stage, noting that the Commonwealth Director of Public Prosecutions could decline to prosecute or judges could consider it as part of a defence.
Gaughan said the police get “numerous” referrals about alleged leaks – “too many”, in his words – but took these matters seriously in part to ensure the “international community knows that we take the leaking of sensitive information seriously”.
Despite a litany of complaints about alleged leaks, the matters rarely proceed to prosecution, with the pending prosecution of the Afghan files whistleblower former defence lawyer David McBride a notable exception.
Critics of the raids include the opposition Labor, Greens and Centre Alliance parties, who have complained of a double standard. They say leaks of material advantageous to the government are not pursued while leaks relating to alleged misconduct of significant public interest are pursued due to embarrassment of the government and security agencies.
On Thursday, Labor demanded an explanation for the recent raids, warning that the prime minister, Scott Morrison, and Dutton could not “hide behind” police because the investigations were initiated by referrals from the government.
The shadow attorney general, Mark Dreyfus, accused the prime minister of “hollow words” by claiming to believe in press freedom but refusing to explain the “extraordinary” raids which targeted Smethurst in her home and the ABC.
The shadow home affairs minister, Kristina Keneally, offered the government bipartisan support if it chose to review national security laws.
So far Morrison has reasserted that the raids occurred at arm’s length from the government and suggested he is “open to discussing” concerns about security laws’ impact on the press.
Keneally told reporters in Melbourne if there was “some suggestion” that national security laws could be reviewed, Morrison should work with Labor “in a bipartisan fashion”.
“It’s incumbent upon all of us in the parliament to uphold democratic freedoms, to uphold trust in the community.
“But the government of the day is the Morrison government and they need to stand up, speak on this issue; if they want to work with us on this, I say the door is open.”
The police union, meanwhile, has urged the public to recognise officers were simply doing their job and “doing it professionally”.
The Australian Federal Police Association president, Angela Smith, said she was proud of the AFP officers had executed the warrants while under intense media scrutiny.
“The community needs to remember that the officers are doing their job and they are doing it professionally,” Smith said.
“Given the media attention directed at the officers, including the disclosure of the name of the search warrant holder by the ABC, they have performed extremely well and conducted themselves with integrity and professionalism and I congratulate them on that.”
with Christopher Knaus