But what none of those organisations seem to have noticed is that the AFP is not relying on secrecy laws to pursue ABC journalist Dan Oakes. It is trying to use a law that nobody has ever thought concerned government secrets to criminalise ordinary journalism – and none of the safeguards recently introduced apply. Oakes and his producer Sam Clark were responsible for a series of stories aired in 2017 that the ABC called The Afghan Files. They were based on leaked documents from a stalled defence force investigation into allegations that Australia’s special forces in Afghanistan had committed war crimes. David McBride outside court. Credit:AAP Long before the AFP arrived at the ABC, the source of those documents had outed himself. Military lawyer David McBride has now been committed for trial in the ACT Supreme Court. He admits to leaking defence force documents, but will plead not guilty, on the grounds that he was acting in the public interest. But not guilty of what? There are five charges. One of them is that he stole Commonwealth property, contrary to section 131.1 of the Criminal Code Act 1995.

Stole Commonwealth property? What property? Well, we don’t yet know, but presumably physical documents, or perhaps electronic files. Yet it is clear from the wording of the act (well, clear to me anyway, but apparently not to the AFP or to the magistrate who has committed McBride for trial) that that section has nothing to do with information, secret or otherwise. There are plenty of other laws covering that. Section 131 is about theft: stealing money, or a laptop, or a pot-plant from a government office. Loading Even more alarmingly, the search warrant that the AFP coppers brought with them to the ABC said that they suspected ABC reporter Dan Oakes, as well as McBride, of committing crimes: among them “dishonestly receiving stolen property” from McBride. In other words, in the AFP’s view, Oakes is not a journalist. He’s a fence. Last November, some of Australia’s old secrecy laws were repealed, and replaced with new sections of the Criminal Code. In some ways they are more draconian than the old laws: a Commonwealth officer who passes on unauthorised information, for example, risks seven or even 10 years in prison, rather than two. But they come with a few new safeguards.

For example, the prosecution now has to show that the information communicated is harmful, or “inherently harmful”, to Australia’s national interest. And there’s a specific defence for journalists who can convince a court that in receiving and publishing the information, they reasonably believed they were acting in the public interest. Illustration: Dionne Gain Credit: Well, the AFP argues, we couldn’t use those new laws, because they weren’t in force at the time the alleged offences were committed. Fair enough. So why not use the old section 79 of the Crimes Act, which criminalised the receipt of “official secrets”? That’s the law the AFP told the ABC back in May that it suspected Oakes of breaching. My suspicion – and I’m not alone – is that the police realised that prosecution under those old secrecy offences (and indeed, under the new ones) needs a go-ahead from the Attorney-General. The current A-G, Christian Porter, may well have told the AFP back in May what he told the rest of us after the raids: that he would be “seriously disinclined” to authorise the prosecution of journalists just for doing their jobs.