The Australian Federal Police is relying on an old and flawed law to reach into some disturbing new places. From the NBN raids to investigating a doctor who spoke out about asylum seeker care, it's looking decidedly anti-democratic, writes Michael Bradley.

Ancient laws have a habit of coming back to bite. A German comedian might be prosecuted for a video in which he said rude things about the president of Turkey, under an obscure provision of Germany's criminal code which has been on the books since Kaiser Wilhelm II's days and makes it a crime to insult a foreign head of state.

In Australia, an equally old and unloved criminal provision has had a renaissance under the newly excitable and publicity-un-shy Australian Federal Police, which is using the law to extend its reach into some unprecedented and disturbing places.

Last week, the AFP raided the office and homes of ALP officials searching for documents leaked from NBN Co. We now learn that the AFP has been conducting an investigation of Dr Peter Young, the former medical director of mental health services for our offshore immigration detention centres, after he commented publicly and critically about the medical care of asylum seekers and particularly the horrible and completely avoidable death of Hamid Khazaei.

Khazaei, you might recall, died last September in a Brisbane hospital from a bacterial infection which had invaded a small leg wound. The media reported on leaked contents of his medical records in December, which showed that his treatment had been fatally delayed by bureaucratic delays inside the Immigration Department, so that he was left to languish on Manus Island for more than a day after his urgent airlifting had been recommended, then taken to a Port Moresby hospital, before finally making it to Australia just in time to die.

Dr Young commented on the Khazaei case in December and again when Four Corners told the full story in April this year, and his assessment is openly scathing. The reaction was to call in the cops to investigate - not into whether Khazaei's death involved criminal negligence by a Commonwealth officer, but whether Dr Young had leaked the medical records.

The AFP's powers are limited. It can only investigate crimes under Commonwealth laws, and there aren't that many of those. The vast majority of crime is a state law matter. For the NBN and Khazaei investigations, the AFP called upon section 70(1) of the Commonwealth Crimes Act, which has been on the statute books since 1914 and is extraordinarily wide.

Section 70(1) makes it a crime for a "Commonwealth officer" to publish or communicate to anyone else any fact or document which they know or possess "by virtue of being a Commonwealth officer".

The only limiting factor is that the information must be of a type which the officer has a duty not to disclose. For many public servants, for example anyone who does any work at all for the Department of Immigration and Border Protection, that means everything. More generally, both government workers and contractors are these days made subject to rafts of overlapping statutory and contractual non-disclosure obligations, so their risk of inadvertently contravening section 70 is much higher than they're likely to imagine. Because the law makes no distinctions about the nature, materiality or sensitivity of the "fact or document" which is disclosed, the reality is that section 70 is being broken all the time. The penalty is two years' imprisonment.

When a law is on the books for a long time and is breached constantly but rarely prosecuted, we know one thing about it - it's a stupid law.

Actually, there have been many calls for the repeal of section 70, including from the Law Reform Commission, but neither major party has bothered dealing with it. Of course there's no practical problem with leaving an excessively wide law on the books for years, provided the cops don't one day start using it as a means of sticking their beaks into places we really shouldn't want them to go...

Which is where we're at now.

The AFP is on to section 70, and it's like that time the deputy principal knew he couldn't prove you'd burned down the chemistry lab so he busted you for not wearing the correct school socks instead (not a true story).

In the NBN and Khazaei cases, the AFP could only proceed if it reasonably suspected that a Commonwealth officer leaked the material that got into the media.

Seriously, what the hell? As I've said, neither case involves national security or anything remotely approaching a state secret. In the Khazaei case, what was leaked was the information which let us know what the Government was desperately keen we not know: that Khazaei's death was caused by us. The only person who might care about the privacy of his medical records was him, and he's dead.

More importantly, why is the AFP investigating Dr Young? As the heavily redacted records of its investigation confirm, the reason the AFP went after him was because of "comments attributed to him being highly critical of [the Immigration Department] and IHMS in their handling of asylum seeker care." There was no evidence Dr Young had been involved in the leaks to the media. In forensic terms, going after him was no more than a fishing exercise.

As for the NBN case, you might be wondering how section 70 can even apply. Only a "Commonwealth officer" can breach section 70. But NBN Co is an ordinary trading company under the Corporations Act, and its own legislation specifically provides that it is not a public authority. So, how can an NBN employee be a Commonwealth officer?

Here's where the stupidity of section 70's existence goes into overdrive. The Crimes Act defines "Commonwealth officer" to include not just public servants but anyone who "performs services for or on behalf of the Commonwealth". That technically picks up every person who works for a business which provides any services to any Federal Government entity - even law firms, the horror. It comfortably brings NBN Co's employees within section 70's extended reach.

The significance of these stories is manifold. The political dimension is that the Government continues to demonstrate that it is anything but liberal in its attitude to the public's right to know; it is very focused on preventing the truth and punishing those who reveal it.

The governmental aspect is that the AFP now appears hopelessly politicised and compromised by its own actions; it is actively pursuing people who have done nothing other than possibly break a bullshit law which should have been repealed decades ago and which now appears to be being selectively exploited for entirely political ends.

It gives the impression that the AFP has become a willing tool of the government of the day, and we should not expect this to change if the ALP wins the election. It's just as bad.

The societal issue is profound. A properly functioning democracy is able to immediately identify when a long-redundant law is disinterred by authorities who wish to use it for anti-democratic ends. Our democracy is rapidly losing this ability. The consequence today is that a young man's death and the airing of a government's incompetence are resulting only in the shooting of the messengers. You don't need much imagination to see where this is heading.

Michael Bradley is the managing partner of Sydney law firm Marque Lawyers, and he writes a weekly column for The Drum. He tweets at @marquelawyers.