On the morning of 4 June, News Corp journalist and political editor Annika Smethurst was preparing to leave for work when she was met by the Australian Federal Police brandishing a warrant.
A statement from the AFP subsequently confirmed that it had 'executed a search warrant at a residence in the ACT suburb of Kingston' on a matter relating 'to an investigation into the alleged unauthorised disclosure of national security information that was referred to the AFP'. The AFP 'will allege the unauthorised disclosure of these specific documents undermines Australia's security'. Some hours later, the AFP confirmed that, 'This warrant relates to the alleged publishing of information classified as an official secret, which is an extremely serious matter with the potential to undermine Australia's national security.'
The story supposedly linked to the AFP warrant had been published by Smethurst on 29 April 2018. The story titled 'Let us spy on Aussies' detailed discussions between Home Affairs Secretary Mike Pezzullo and Defence Secretary Greg Moriarty on the possibility of granting the Australian Signals Directorate expansive powers to monitor the emails, bank records and text messages of Australian citizens.
Within hours of the raid on Smethurst's home, radio 2GB Drive presenter Ben Fordham told listeners he had been the subject of interest from the Home Affairs department after discussing the attempt on the part of six asylum seeker boats to reach Australia. Fordham's producer was reprimanded by a Home Affairs official for allowing the discussion of 'highly confidential' material. 'In other words,' explained Fordham, 'we weren't supposed to know about it.'
That was not the end of it. An incident was unfolding at the Sydney offices of the national broadcaster that Wednesday morning. The AFP had executed another warrant naming ABC investigative journalists Dan Oakes and Sam Clark, along with ABC director of news Gaven Morris, all linked to the publication of the the Afghan files, a set of stories in 2017 revealing allegations of unlawful killings by Australian special forces in Afghanistan.
While the dusty and dangerous provisions of section 79 of the Crimes Act 1914 (Cth) dealing with the revealing of official secrets were repealed on 29 June 2018, the publication of Smethurst's story and the Afghan files, as they took place prior to the repeal, have ominous implications. The public interest defence appended to the National Security Legislation Amendment (Espionage and Foreign) Interference Act 2018 protecting those 'engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media' discussing 'inherently harmful information' do not apply.
For those keen on the details of what might be regarded as 'inherently harmful information', the following definition is supplied in the amending act: security classified information; information obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency's functions; or information on 'the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency'.
"Another troubling conclusion presents itself: a national security mentality gone rogue, conducting its affairs in the dark."
In a sense, the point is a moot one. Even if the 2018 amendments had applied, the unfortunate whistleblowers in question would not be able to rely on its protections. The Law Council president Arthur Moses accurately notes that the protection offered in the amended provisions is an illusion, nothing short of a 'mirage because it does not cover a journalist's source'. The Law Council's efforts to convince the federal government to extend the public interest defence to suppliers of the information was purposely rejected, making sources in either the Afghan files case, or that of Smethurst, vulnerable. This, in short, is a campaign to target the source.
These events did not seem to trouble Australian Prime Minister Scott Morrison, who claimed that 'it never troubles me that our laws are being upheld'. But what should be troubling is the admission on the part of both Morrison and Home Affairs Minister Peter Dutton that such high-profile raids were in the works, the result of independent investigations.
This raises two points: not knowing the operations of the police and the defence department gives the appearance of impartiality. But it also suggests the opposite: those in power knew that such operations would be instigated, and duly permitted such actions in the name of broader security objectives. If not, another troubling conclusion presents itself: a national security mentality gone rogue, conducting its affairs in the dark.
The implications of these raids, more broadly speaking, lie beyond the immediate acts. Chris Merritt, legal affairs editor of The Australian, saw the raid as the most dangerous of precedents. 'Welcome to modern Australia — a nation where police raid journalists in order to track down and punish the exposure of leaks inside the federal government.'
But Merritt, along with his colleagues, has been asleep at the wheel. The gradual additions to Australia's national security framework, in the absence of an entrenched constitutional right protecting the press, has made the conditions ripe for such raids. As the independent MP Andrew Wilkie warns, such matters all begin incrementally: a new law here, a police raid there; then 'one day you wake up and we look like East Germany'.
Dr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.
Main image: Acting AFP Commissioner Neil Gaughan speaks to the media on 6 June 2019 in Canberra following the raids on the home of News Corp journalist Annika Smethurst and on the ABC's head offices in Sydney. (Getty Images)