AFP raids coverage missed key points



Last week, it dawned on many that reporting on high level government deliberation might be enough to permit AFP officers to rummage through your underwear drawer. Tall people might also descend on your workplace if you dare report on alleged war crimes, fishing through your IT systems for your criminal bureaucrat source.

Acting AFP Commissioner Neil Gaughan speaks to the media in Canberra on 6 June 2019 following the AFP raids on the home of News Corp journalist Annika Smethurst and the ABC's head offices in Sydney. (Photo by Getty Images)Raids on journalist Annika Smethurts's home and the ABC headquarters in Sydney mark a suspiciously delayed investigation into a 2018 story about a government proposal to expand spy agency powers, and a 2017 report about alleged war crimes committed by Australian soldiers in Afghanistan. The rebuke was unprecedented: media outlets and politicians from across the political spectrum voiced disgust at such a brazen and selective intrusion into the work of journalists.

Demands for the protection of fundamental rights are, of course, a good thing. But the media coverage of the AFP raids took a scattergun approach and, in some cases, contained oversight and inaccuracy. Here are some important details that were lost in the furore.

First, the primary targets of the raids were the public servants who leaked the information. The impact of the raids on journalists is a live issue, but — more immediately — concern should be directed towards the journalistic sources who nervously wonder whether the AFP will spot their name scribbled somewhere in the margins of a draft article.

The criminal offences that apply to public servants are less forgiving and more frequently prosecuted than those that could apply to journalists. Public servants who disclose sensitive information learned in the course of their employment are likely to be guilty under s 122.4 of the Criminal Code Act 1995. It does not matter how important that communication was to the public interest.

Second, contrary to some suggestions, the raids were not made possible by the smooth passage of controversial national security legislation through Parliament in recent years. The substance of the offence that applies to public servants has not changed since 1960 (state and territory offences date back longer). A version of the offence of communicating a leak, which could apply to journalists, has been around since at least 1914 (and even that modelled an imperial statute enacted in 1911). This conversation is long overdue.

Third, commentary on the raids has revealed a widespread misunderstanding — and underestimation — of Australian constitutional rights. Politicians and commentators swiftly demanded amendments to a Constitution that is apparently bereft of sufficient free speech protections.


"Rest assured, there is no secret Parliament for secret spy legislation."


Yet one of the few freedoms that the Australian Constitution does protect — albeit impliedly — is the freedom of political communication. An individual charged with an offence may argue that the offence impermissibly burdens the implied freedom to communicate with fellow electors about political matters.

A public servant or a journalist convicted of a secrecy offence would be well advised to mount a constitutional challenge in the High Court. The offence that applies to public servants is particularly susceptible to challenge because — without any form of public interest defence — it is far broader than what is necessary to protect national security.

It doesn't make sense to criticise Australia's Constitution for failing to protect journalists or public servants when no one has even tested whether it could. Of course, the outcome of a challenge is unpredictable and would depend on the merits of the particular case.

Remember back in 2016 when doctors were gagged from reporting on what happened in offshore detention centres? A group of doctors challenged that law in the High Court on the basis that it breached the implied freedom. The government swiftly changed the regulation, evading the possibility of an embarrassing court ruling. One might speculate as to whether the government had legal advice about the shoddy constitutionality of laws of this kind. 

Fourth, government secrecy is sometimes desirable. Secrecy can facilitate candid deliberation of policy options, allowing politicians and their advisers to frankly and fearlessly discuss options without the risk of backlash. Of course, it's also necessary to protect information that could cause harm, such as the identities of foreign spies, or that undermines certain operations, such as the tactics used in detecting terrorist attacks.

The current secrecy offences go further than these aims, and should be reformed on that basis. But the potential value of cloaking at least some high-level government deliberation has not been widely acknowledged, especially in the case of Smethurst's reporting. Indeed, outside the security context, we may want future governments to consider more creative policies without fear that the tabloids will pounce. If the government had gone ahead with expanded spying powers, we would have found out — such changes would, after all, need to go through Parliament. Rest assured, there is no secret Parliament for secret spy legislation.

Malcolm Turnbull said in Parliament last year that 'sunlight is the best disinfectant'. He failed to mention, of course, that the espionage bill he was commending to the house ensured that too much sunlight remained punishable by a prison sentence. The detail always matters.



Jules O'DonnellJules O'Donnell has degrees in law and literature from the University of Melbourne. All views are his own.

Main image: Acting AFP Commissioner Neil Gaughan speaks to the media in Canberra on 6 June 2019 following the AFP raids on the home of News Corp journalist Annika Smethurst and the ABC's head offices in Sydney. (Photo by Getty Images)

Topic tags: Jules O'Donnell, AFP raids, media, Afghanistan



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Existing comments

A very good article indeed! The "political communication" freedom is an important one (albeit, as you say, untested in this area). On the civil service point, it will be critical to see how the Banerji case pans out - that will certainly test the limits of political expression by public servants. That said, it seems good that people are - finally - waking up to the tranches of security legislation which have been passed by both parties before the apparently sleeping eyes of a fourth estate which has belatedly become aware of their potential. Sadly, the freedom of political expression protected by the Constitution has not, at least so far, protected "Witness K" and Bernard Collaery from raids in apparent violation of professional privilege and a secret trial. Nor has it (at least, not yet) provided any assistance to Richard Boyle. These things may come in time, but for the moment the security state is (rightly) emboldened with very little to check it.

Justin Glyn | 13 June 2019  

Wow. This makes me realise how wrong I've got this whole thing. Not hard when nothing else I've read has pointed out this information.

Sue | 15 June 2019  

Very good article Jules; please keep up the work on the topic. The whistleblower legislation for both public service workers and corporate employees also warrants continuing scrutiny and critical comment.The official secrets provision of the Crimes Act and related legislation has always been used far beyond its proper purpose. The privatisation and outsourcing of public sector services means accountability is at an increasingly low ebb; the best challenge to that state of affairs is informed research and pressure for change.

Paul Munro | 17 June 2019  

This is indeed an instructive and important article. In relation to "Witness K" and Bernard Collaery, the major effects of the government's invoking of the concept of "national security" is to muddy the waters. "Security" implies that a level of fear exists. Government actions suggest that these men somehow threaten security, and their lengthy and expensive pursuit is meant to show a government keen to protect the nation. Even more, it demonstrates what will be done to anyone else who might consider that truth is better than lies. When told the truth, however, people's jaws drop. In one discussion someone said "That couldn't happen in Australia!" Of course it is the government's duty to protect the citizens, and the means to do that include raids, secrecy, and other options. What is so difficult to stomach is when these legal and administrative processes are employed to conceal government wrongdoing. It then becomes a matter of public interest, because it is proof that government cannot be trusted to interpret and administer the law fairly. The case of the spying on Timor is not a matter of opinion, it is a matter of fact. The information received through that spying concerned financial dealings with an impoverished regional neighbour which gave Australia the advantage in negotiations. It was fraudulent and illegal conduct during formal trading proceedings. It's a sorry day when this or that Crimes Act or National Security Bill is used to conceal such grubby deceit. It is increasingly apparent that the main security the Australian nation needs is to be protected from governments' abuse of laws. Once trust is gone, there's little left.

Susan Connelly | 17 June 2019  

Jules, While you have explained very well the laws surrounding the position of so called free speech in Australia and the situation affecting Public Servants (I was one at times in my career). Your article has not explained why it took so long for the AFP to carry the raids after the events which are nominated as the reasons to trigger the raids in the first place. Second, why journalists and the ABC HQ ? It seems highly unlikely that the identity of the supposed whistle blowers would have emerged from these raids anyway. What you your article did do for me as a former Public Servant, still coved by these laws in my retirement, was to make me consider my position, if in the course of my employment, I became aware of a situation which merited revealing to a journalist as it "was in the public's right to know" . This is a moral and ethical dilemma which must face a Public Servant at least once in their career? At present they must carry that dilemma to their grave.

Gavin O'Brien | 17 June 2019  

The secrecy surrounding tenders is also disturbing, eg the no tender lucrative Paladin contracts for running the appalling detention centres or guarded equivalents. Or the rushed through approvals for coal mines. The capture of governments by corporations needs to be stemmed and re investigation and publication without fear. Plus, spying on vulnerable islands for gain must be exposed, without penalty.

Karis | 17 June 2019  

Who elected journos as the sole custodians of the right to determine what "the public has a right to know"? The government has been elected to do that and there are some things that should be secured in the nation's best interests. The press is addicted to created sensationalism in this country with a view to ratings and a Walkley Award, not to a better and safer society for all. A pathetic and unjustifiable game!

john frawley | 17 June 2019  

Thank you for a very informative article. I naively assumed that secrecy relating to national security was to protect spies and military personnel in the field. Now I realise that it is used to conceal information that is simply political unfavourable for the government of the day. In future my vote will be for the party that advocates less 'national security' and more freedom and transparency.

Michael Taouk | 18 June 2019  

Thank you Jules for a timely article on the recent raids by the AFP rights of journalists in Australia to keep us informed. Frequently, politicians tell us that the fourth estate is necessary for a flourishing democracy. However, many of the same politicians introduce laws that jeopardise freedom of speech for both journalists and whistle blowers to expose unfair and criminal actions undertaken by governments and big business. Such actions undermine our basic human rights and our democracy. Obviously, when we are confronted by frequent acts of terrorism, we need security services for the protection of citizens. We should never let unscrupulous politicians use this fact to cover up crime, prevent people from speaking freely or for punishing those like Julian Assange, Witness K, Bernard Collaery etc. who have exposed unacceptable actions.

Andrew (Andy) Alcock | 22 June 2019  

I agree the need for free speech but also acknowledge the need for secrecy in some aspects of government to protect debate about possible policies and to protect matters relating to military and other operations. It always seems that the media has a "hissy fit" if they think anyone has stepped on what they consider their 'turf' but without acknowledging any other point of view. It is similar to the reaction when a journalist seeking a scoop is injured or killed when he or she puts themselves into danger in a conflict zone. Sad as such an event may be, the media must surely realise that they must be responsible fore their own actions and may have to acknowledge that responsibility.

Joe Barr | 28 June 2019  


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