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The AFP Raids: The Use of Scare Tactics to Undermine to Free Press

Mehar Chawla

Earlier this year, the High Court ruled that the warrant used by the Australian Federal Police (AFP) to raid News Corp journalist Annika Smethurst’s property was invalid. This occurred against the backdrop of the ABC challenging a similar assault—raids that the AFP had conducted at their Sydney headquarters just a day after. [1]


Both concerned alleged breaches of national security, both were deliberately timed, and both have brought Australia’s understanding of the right to a free press under scrutiny. They also raise some questions as to the rationale behind the raids: why were they conducted at Ms. Smethurst’s home and not her workplace? How long had the AFP been carrying out investigations and surveillance? For a matter of national security, why did the raids take place a year after Ms. Smethurst’s story was published, and over 6 years after the ABC’s story?


There are also implications for our democracy. Our right to vote is premised on an exercise of free will and a free flow of information. But are we actually exercising an ‘informed’ vote if the rationale behind policy, or the overseas activities of our governments, are obscured?


Background

On 3 June 2019, the AFP obtained a warrant to search Ms. Smethurst’s home, on the basis that she had breached s 79(3) of the Crimes Act with the publication of a memo she had released a year earlier.[2] Smethurst’s alleged dissemination of ‘official secrets’ claimed that the government was planning to expand the role of the Australian Signals Directorate (the Directorate)—a Defence agency responsible for gathering signals intelligence, translating data sets, supporting military operations, and countering cyber warfare.[3] An expansion of the Directorate’s ‘spying’ powers would, as a corollary, increase the amount of our personal information available to domestic agencies. [4]

The next day, the AFP raided the ABC’s head office over the release of the ‘Afghan Files’—an exposé on war crimes committed by Australian soldiers in Afghanistan over 6 years ago. This story was published back in July 2017 by journalists Dan Oakes and Sam Clark, using documents leaked by a Defence Force official—David McBride.[5]

In separate proceedings, the ABC and News Corp asserted that the raids breached the implied freedom of political communication, emphasising the ‘fundamental importance of investigative journalism’. [6]

What did the Courts find?

Ms. Smethurst and News Corp went straight to the High Court, emerging with an unsatisfactory ‘victory’.[7] By determining that the search warrant ‘lacked clarity’,[8] the Court declared it invalid while avoiding the crux of the debate—the implied freedom of political communication (IFPC) and its relationship to nebulous notions of ‘national security’. They also circumvented the issue of a breach of personal privacy, despite the invasive search extending to Ms. Smethurst’s bedroom and her underwear drawer.[9] Moreover, the ruling did not actually grant the injunctive relief she was seeking, which was to have the seized phone and computer data returned. Until May 2020, when the AFP declared that they would not be laying charges, the threat of prison time was therefore left looming over Ms. Smethurst.[10]


The ABC took to the Federal Court with several arguments, the most promising being that the granting of the search warrant itself was void, due to a misapplication of the law. Section 3E of the Crimes Act prescribes there must be ‘reasonable grounds for suspecting’ that the premises contain information which will aid in the ‘detection and prosecution’ of the criminal offence alleged.[11] However, McBride had already been charged—first in 2018 for theft of Commonwealth Property,[12] then again in 2019 for communicating Defence Force information and distributing a Commonwealth document while occupying the position of a Commonwealth officer at the time of disclosure.[13] Moreover, the warrant was vague and imprecise in its wording. It requested access to information ‘relating to the ABC,’ and any ‘military information’ they held, essentially allowing for unfettered access to all ABC material which fell within this scope.[14] Given that the informant had already been charged, the heavily public nature of the raids suggests the AFP were attempting to showcase their power.


Ultimately, the Federal Court deemed the warrant valid, and the ABC decided not to appeal the matter further.


Implications

Free press is the cornerstone of any democracy,[15] and Australia’s approach has long needed reform. In the United Kingdom, law enforcement agencies can only access the confidential material of journalists for the purposes of investigating terrorism.[16] The past year has been concerning not only for those targeted journalists, but for their informants, and for Australia’s democratic integrity.


The raids on Ms. Smethurst were personal, invasive, and in many ways, foreboding. Indeed, the impact on her sense of privacy and security led her to move houses almost immediately after the raid. But further to this, the experience ‘rocked [her] faith in journalism’, and curtailed the ‘zest and drive’ she once had for her career.[17] Discouraging journalists from reporting on sensitive political issues, especially when it comes to covert government activity, ‘corruption or misconduct’,[18] also has consequences for the public’s political awareness. Our constitutionally protected right to vote necessarily implies a free flow of information—one which relies heavily on media outlets for its dissemination.


The reality remains the same regardless of the justification: the AFP has sent a clear message to publishers and whistleblowers. The willingness of informants to come forward is integral to the ability of investigative journalists to carry out their functions. Relying on those on the inside for their ‘scoops’, a journalist’s vow to protect their confidential sources is not only their most powerful tool but also their most sacred ‘ethical responsibility’.[19] Without protection, whistleblowers face a myriad of potential consequences—personally, professionally, and legally. McBride, the ‘Afghan Files’ informant, is still undergoing a legal battle which could see him face life despite following protocol—he first took his information to internal structures, then the AFP, before resigning to the media after no action was taken.[20] This situation is not novel and reinforces the value of a free press in operating as an external check on the exercise of government power.

So where does this leave us?

There may have been an apparent failure by the judiciary to grasp a seminal opportunity to rule on IFPC, national security, and press freedom. But at least these issues have been brought into the purview of the general public, forcing governmental response: Attorney-General Christian Porter has pledged an additional safeguard against the indictment of journalists by directing law enforcement agencies to seek his approval before laying any formal charges.[21]


Notably, Peter Dutton made this exact undertaking last year,[22] and the same counter-argument applies now as it did back then: it is difficult to imagine the utility of such ‘safeguards’ when they are beholden to the interests of the government itself. Every country has the need for national security protections—some which would be severely compromised should they be prematurely broadcasted. However, the disclosure of public interest information should never be censured, especially when done just to avoid a damaged reputation or ‘embarrass[ment]’.[23]


This case still had an impact. Two parliamentary inquiries into press freedoms were instigated in response to the raids and the Courts’ non-engagement with the IFPC. The first focuses on the relationship between law enforcement agencies and the media,[24] while the second more broadly analyses Australia’s existing disclosure frameworks for ‘sensitive and classified’ information.[25] The future of press freedoms in Australia is on shaky ground, and the recommendations of these inquiries hold the potential to shape its future.


References

[1] Peter Greste (April 2020), https://theconversation.com/the-high-court-rules-in-favour-of-news-corp-but-against-press-freedom-136177.

[2] Crimes Act 1914 (Cth) s 79, repealed by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth).

[3] This section has been repealed from the Crimes Act and inserted into Chapter 5 of the Criminal Code 1995, although there is no substantive difference in the provisions: https://www.alrc.gov.au/publication/secrecy-laws-and-open-government-in-australia-alrc-report-112/3-overview-of-current-secrecy-laws/general-criminal-offences/; https://www.asd.gov.au/about

[4] David Wroe (June 2019), https://www.smh.com.au/politics/federal/intelligence-agency-could-be-used-for-offensive-cyber-operations-in-australia-20190614-p51xst.html

[5] Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133.

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0133

[6] Rebecca Ananian-Welsh (June 2019), https://theconversation.com/explainer-what-are-the-media-companies-challenges-to-the-afp-raids-about-119382

[7] Ibid.

[8] Crimes Act 1914 (Cth), s3E(5).

[9] Rebecca Ananian-Welsh (June 2019), The Conversation.

[10] Jordan Hayne (May 2020), https://www.abc.net.au/news/2020-05-27/afp-will-not-lay-charges-annika-smethurst-raid/12291238.

[11] Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133, [90]-[91].

[12] Criminal Code 1995 (Cth), s131.1(1).

[13] Defence Act 1903 (Cth), s 73A(1); Crimes Act 1914 (Cth) s 70(1).

[14] Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133, [90]-[91].

[15] Human Rights Committee, General Comment No 34: Article 19, Freedoms of opinion and expression, 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011) [13].

[16] Rebecca Ananian-Welsh (June 2019), The Conversation.

[17] Meet the Author with Annika Smethurst–On Secrets. https://www.youtube.com/watch?v=rPxkFJ8uo4E

[18]

[19] Rebecca Ananian-Welsh (June 2019), The Conversation.

[20] Mark Maley, Manager of Editorial Policy for the ABC, University of Queensland’s 2019 Submission to the Senate Standing Committees on Environment and Communications; Clause 3 of the MEAA Code of Ethics.

[21]https://www.smh.com.au/politics/federal/what-i-ve-done-makes-sense-to-me-the-complicated-colourful-life-of-david-mcbride-20190621-p5204h.html

[22] Brett Worthington (September 2019), https://www.abc.net.au/news/2019-09-30/attorney-general-grants-journalists-limited-protection/11560888.

[23] Jade Macmillan (August 2019), https://www.abc.net.au/news/2019-08-09/peter-dutton-orders-afp-press-freedom-investigating-journalists/11401108.

[24] Paul Karp (May 2020), https://www.theguardian.com/media/2020/may/27/afp-rules-out-charges-against-news-corp-journalist-annika-smethurst-after-raid.

[25] https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress.

[26] https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/PressFreedom.



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