ABC lawyers and Australian Federal Police technicians are continuing to analyse documents during a raid of the broadcaster’s Sydney headquarters over a series of 2017 stories known as the Afghan Files.
- The AFP said there would not be any arrests today
- ABC managing director David Anderson said the broadcaster “stands by its journalists” and “will protect its sources”
- An AFP statement said the warrant was not linked to an AFP raid on a Canberra News Corp journalist’s home on Tuesday
The stories, by ABC investigative journalists Dan Oakes and Sam Clark, revealed allegations of unlawful killings and misconduct by Australian special forces in Afghanistan and were based off hundreds of pages of secret Defence documents leaked to the ABC.
The search warrant names Oakes, Clark and the ABC’s director of news Gaven Morris.
It is expected the process will continue for several hours. A small number of the documents initially identified by the searches are being handed over to the AFP.
The electronic documents will first be sealed before leaving the building pending a two-week period of review by ABC lawyers.
During this time the ABC can challenge the terms of the warrant and claim legal privilege over the documents.
Three AFP officers entered the ABC building about 11:30am, followed shortly afterwards by three police IT technicians.
AFP officers served the ABC legal team with a warrant and are searching for, and copying onto hard drives, information related to the warrant.
The AFP told the ABC they want to search through email systems in relation to the people mentioned in the search warrant and were searching “data holdings” between April 2016 and July 2017.
They are also searching for article drafts, graphics, digital notes, visuals, raw television footage and all versions of scripts related to The Afghan Files stories.
Thousands of items have been found which match search terms listed in the warrant.
The ABC and the AFP are now negotiating and debating whether or not each of these items fit the terms of the warrant.
ABC ‘will protect its sources’
ABC managing director David Anderson said it was “highly unusual for the national broadcaster to be raided in this way”.
“This is a serious development and raises legitimate concerns over freedom of the press and proper public scrutiny of national security and Defence matters,” he said.
“The ABC stands by its journalists, will protect its sources and continue to report without fear or favour on national security and intelligence issues when there is a clear public interest.”
ABC editorial director Craig McMurtrie described the raid as a “very unwelcome and serious development”.
“This was outstanding reporting … it was clearly in the public interest and sometimes difficult truths have to be told,” he said.
“We will be doing everything we can to limit the scope of this and we will do everything we can to stand by our reporters.”
Mr Morris, the ABC’s director of news who is named in the warrant, said “journalism is not a crime”.
“Our journalists do a really difficult job, I’m proud of what they do, they do it in the public’s interest,” he said.
“I’d say to all the journalists at the ABC and all the journalists across Australia, don’t be afraid of the job you do.
“Stand up and be proud of it and continue to act in the public’s interest knowing the stories you tell and the service you provide the community is a vital one for our democracy.”
Media, Entertainment and Arts Alliance president Marcus Strom described the raids as “disturbing” considering they have taken place so soon after a federal election.
“It should chill the public as well as journalists,” he said.
“This is not really about journalism and journalists. At the end of the day it’s about the general public and its democratic right to know what the Government is doing.
“These raids are all about intimidating journalists and intimidating whistle blowers so that mistakes made by the Government, including potential crimes, by the military, remain covered up, remain secret, and don’t fall in to the public domain.”
Not linked’ to News Corp journalist’s home raid
The raid comes one day after the AFP executed search warrants at the home of News Corp journalistAnnika Smethurst, who had reported on secret plans to allow government spying.
The AFP released a statement saying no arrests were planned today and the warrant was “not linked to a search warrant executed in Canberra yesterday”.
The search warrant was “in relation to allegations of publishing classified material, contrary to provisions of the Crimes Act 1914” and “relates to a referral received on 11 July 2017 by the Chief of the Defence Force and the then-Acting Secretary for Defence” the statement said.
A later statement from the AFP said Home Affairs Minister Peter Dutton was “not notified prior to the execution of the warrants”.
“The AFP’s actions have been independent and impartial at all times,” it said.
“When the AFP receives referrals it assesses them for criminality and does not make value judgements on the issue instead identifying whether there has been any contraventions of Commonwealth Law, and when [sic] evidence as to whether the offence has been committed or otherwise.”
In a statement, Mr Dutton said the AFP “conduct their investigations and carry out their operations independent from the Government”.
“The AFP have an important job to undertake and it is entirely appropriate they conduct their investigations independently and, in fact, it is their statutory obligation.
“I have had no involvement in the AFP’s investigation into these matters. Following the execution of each search warrant on 4 June and 5 June respectively, my office was informed that search warrants had been executed.”
Opposition home affairs spokesperson Kristina Keneally said Labor had requested a briefing from Mr Dutton’s office “to seek to understand why raids of such nature are warranted”.
“Freedom of the press is an essential component of our democracy,” she said.
The ABC’s Melbourne offices, where Clark and Oakes are based, have not been raided by the AFP.
05 June 2019 | Rebecca Ananian-Welsh | The Conversation
The Australian Federal Police has this week conducted two high-profile raids on journalists who have exposed government secrets and their sources.
On Tuesday, seven AFP officers spent several hours searching News Corp journalist Annika Smethurst’s Canberra home, her mobile phone and computer. The AFP linked the raid to “the alleged publishing of information classified as an official secret”.
This stemmed from Smethurst’s 2018 article, which contained images of a “top secret” memo and reported that senior government officials were considering moves to empower the Australian Signals Directorate (ASD) to covertly monitor Australian citizens for the first time.
Soon after, 2GB Radio Presenter Ben Fordham revealed he had been notified by the Department of Home Affairs that he was the subject of a similar investigation, aimed at identifying the source of classified information he had reported regarding intercepted boat arrivals.
And then on Wednesday, the AFP raided the ABC’s Sydney headquarters. This dramatic development was in connection with the 2017 Afghan Files report based on “hundreds of pages of secret Defence Force documents leaked to the ABC”. These documents revealed disturbing allegations of misconduct by Australian special forces.
The reaction to the raids was immediate and widespread.
The New York Times quoted News Corp’s description of the Smethurst raid as “a dangerous act of intimidation towards those committed to telling uncomfortable truths”. The Prime Ministerwas quick to distance his Government from the AFP’s actions, while Opposition Leader Anthony Albanese condemned the raids.
But to those familiar with the ever-expanding field of Australian national security law, these developments were unlikely to surprise. In particular, enhanced data surveillance powers and a new suite of secrecy offences introduced in late 2018 had sparked widespread concern over the future of public interest journalism in Australia.
The crackdown of the past few days reveals that at least two of the core fears expressed by lawyers and the media industry were well-founded: first, the demise of source confidentiality and, secondly, a chilling effect on public interest journalism.
Upon finding out he was the subject of an investigation aimed at uncovering his sources of government information, Ben Fordham declared:
“The chances of me revealing my sources is zero. Not today, not tomorrow, next week or next month. There is not a hope in hell of that happening.”
Source confidentiality is one of journalists’ most central ethical principles. It is recognised by the United Nations and is vital to a functioning democracy and free, independent, robust and effective media.
One of the greatest threats to source confidentiality is Australia’s uniquely broad data surveillance framework. The 2015 metadata retention scheme requires that all metadata (that is, data about a device or communication but not, say, the communication itself) be retained for two years. It may then be covertly accessed by a wide array of government agencies without a warrant. Some reports suggest that by late 2018, some 350,000 requests for access to metadata were being received by telecommunications service providers each year.
The Government was not blind to the potential impact of this scheme on source confidentiality. For example, obtaining metadata relating to a journalist’s mobile phone could reveal where they go and who they contact and easily point to their sources.
This led to the introduction of the “Journalist Information Warrant” (JIW). This warrant is required if an agency wishes to access retained metadata for the direct purpose of identifying a professional journalist’s source.
So, access to a professional journalist’s metadata in order to identify a confidential source is permitted, provided the access has a particular criminal investigation or enforcement purpose and the agency can show it is in the public interest and therefore obtain a JIW.
This week’s raids suggest that either JIWs could not be obtained in relation to Smethurst, Fordham or the ABC journalists, or the journalists’ metadata did not reveal their sources, or the AFP did not attempt to access their metadata.
Alternatively, if metadata had identified the journalists’ sources, it is less clear why these dramatic developments took place.
After 2015, journalists were advised to avoid using their mobile devices in source communications. They were also encouraged, wherever possible, to encrypt communications.
But in 2018, the Government went some way to closing down this option when it introduced the complex and highly controversial Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018.
As well as expanding computer access and network access warrants, the Act provided a means for Government agencies to co-opt those in the telecommunications industry to assist agencies with their investigations. This could include covertly installing weaknesses and vulnerabilities in specific devices, circumventing passwords or allowing encrypted communications to be decrypted. A warrant would then be required to access the device and communication data.
It is impossible to know whether Australian journalists have been targeted under the Act or had weaknesses or spyware installed on their personal devices. This week’s raids suggest the AFP would be prepared to target journalists under this framework in order to identify journalists’ confidential sources.
However, this could only be done for some purposes, including in the investigation of a secrecy offence.
In June 2018, the Government introduced a suite of new espionage, foreign interference and secrecy offences. This included an offence of current or former Commonwealth officers communicating information, obtained by virtue of their position, likely to cause harm to Australia’s interests. This offence is punishable by imprisonment for seven years. If the information is security classified or the person held a security classification, then they may have committed an “aggravated offence” and be subject to 10 years’ imprisonment.
This week’s raids reveal just how common it is for public interest journalism to rely on secret material and Government sources.
But the journalists themselves may also be facing criminal prosecution. The 2018 changes include a “general secrecy offence”, whereby it is an offence (punishable by imprisonment for five years) to communicate classified information obtained from a Commonwealth public servant. Fordham’s radio broadcast about intercepted boat arrivals was, for example, a clear communication of classified information.
Again, journalists are offered some protection. If prosecuted, a journalist can seek to rely on the “journalism defence” by proving that they dealt with the information as a journalist, and that they reasonably believed the communication to be in the public interest. The meaning of “public interest” is unclear and, in this context, untested. However, it will take into account the public interest in national security and government integrity secrecy concerns as well as openness and accountability.
Protecting media freedom
Australia has more national security laws than any other nation. It is also the only liberal democracy lacking a Charter of Human Rights that would protect media freedom through, for example, rights to free speech and privacy.
In this context, journalists are in a precarious position — particularly journalists engaged in public interest journalism. This journalism is vital to government accountability and a vibrant democracy, but has a tense relationship with Australia’s national interests as conceived by government.
National security law has severely undercut source confidentiality by increasing and easing data surveillance. National security laws have also criminalised a wide array of conduct related to the handling of sensitive government information, both by Government officers and the general public.
And these laws are just a few parts of a much larger national security framework that includes: control orders, preventative detention orders, ASIO questioning and detention warrants, secret evidence, and offences of espionage, foreign interference, advocating or supporting terrorism and more.
JIWs, and the inclusion of a journalism defence to the secrecy offence, recognise the importance of a free press. However, each of these protections relies on a public interest test. When Government claims of national security and the integrity of classifications is weighed into this balance, it is difficult to see how other interests might provide an effective counterbalance.
One of the most disturbing outcomes is not prosecutions or even the raids themselves, but the chilling of public interest journalism. Sources are less likely to come forward, facing risk to themselves and a high likelihood of identification by Government agencies. And journalists are less likely to run stories, knowing the risks posed to their sources and perhaps even to themselves.
Against this background, the calls for a Media Freedom Act, such as by the Alliance for Journalists’ Freedom, have gained significant traction. It may take this kind of bold statement to cut across the complexities of individual laws and both recognise and protect the basic freedom of the press and the future of public interest journalism in Australia.
Rebecca Ananian-Welsh is Senior Lecturer at the TC Beirne School of Law at The University of Queensland. This piece first appeared on The Conversation.
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- #2: An interrogation, a shooting and no witnesses
- #3: What the documents reveal about killings of unarmed Afghans
- #4: The spy and the SAS soldier with a loaded Glock
- #5: Who is the enemy? Australia’s secretive rules of engagement
- #6: What the f*** are you doing?: Chaos over severed hands
- #7: Relations between Australia’s special forces units on ‘knife edge’