Defence department says ‘inappropriate’ to say whether Marise Payne was consulted first

This article is more than 1 year old

This article is more than 1 year old

Defence agencies are refusing to say whether they consulted the then defence minister Marise Payne before referring leaks of classified information to the Australian federal police.

The AFP has confirmed that it began its investigations into the ABC’s report of alleged unlawful killings by Australian troops in Afghanistan and Annika Smethurst’s report of plans to extend spy powers after it received referrals from agency heads in July 2017 and August 2018 respectively.

Payne was the relevant minister for both the defence department and the Australian Signals Directorate at the time of the referrals.

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Both agencies refused to respond to questions from Guardian Australia about whether they had consulted Payne before asking the AFP to investigate, with the Department of Defence saying it would be “inappropriate” to respond.

The AFP faces the possibility of two inquiries into its widely condemned actions when parliament resumes next month. The chair of the committee overseeing law enforcement agencies, Craig Kelly, has pledged to review the AFP’s conduct, while crossbench senators are also pushing for a separate Senate probe.

Labor’s shadow home affairs minister, Kristina Keneally, has said a Senate inquiry is “an option open to the opposition”, but it would still require the full support of the crossbench to become a reality.

The ABC is also considering taking legal action over the raid, its chair confirmed on Monday. Ita Buttrose said the broadcaster had consulted lawyers about its options but had not “briefed anybody yet”.

“At this point, we’re really assessing the allegations to see what actions can be taken and we want to make sure that we’re in the strongest available position to defend ourselves and also our journalists,” Buttrose told ABC radio.

Matthew Collins QC, president of the Victorian Bar Council, confirmed he had been retained by the ABC but could not comment further.

Buttrose said she would be meeting the prime minister, Scott Morrison, about the raid this week.

“I’m not going to tell the prime minister what to do but I will tell him how we feel at the ABC and how I feel,” she said.

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The home affairs minister, Peter Dutton, has claimed the AFP’s investigation happened at “arm’s length” from the government, saying he had been aware the investigation was under way, but had no prior knowledge of the media raids.

Under the AFP’s guidelines, matters where the execution of a search warrant may have “politically sensitive implications” should be raised with the minister responsible for the AFP, by the relevant minister or department at the time of the referral.

“This enables the government to be informed at the earliest juncture of potentially politically contentious matters that may require investigation by the AFP,” the guidelines state.

As the government faces sustained pressure over the nature of the raids, the former defence secretary and former head of Asio Dennis Richardson said agencies needed to be “cautious” about referrals to the AFP.

“If you refer a matter to the AFP they take control of that, and it goes where it goes – they drop some, they pursue others,” Richardson told ABC radio.

“This one … was a matter referred to them two years ago and it pops out of the woodwork now. That to me is not unusual, but I do think that it points to the fact that you need to be cautious in what you refer to the AFP if you don’t want it to surprise you down the track.”

He said he understood the “emotional reaction” to the raids, but believed it was “misplaced” to suggest the AFP was trying to intimidate the media.

“It might have had the consequence of that, but everything I know about the AFP would lead me to believe that the AFP is not in the space of deliberately setting out to intimidate the media.”

With Australian Associated Press