JOE O'BRIEN: … a raid by the Australian Federal Police is underway at the ABC offices in Sydney over a series of 2017 stories known as The Afghan Files.



… these AFP officers heading in to search through files looking for information about just how this story was leaked. - ABC News Channel, 5 June, 2019

Hello I’m Paul Barry, welcome to Media Watch.

And to Australia in 2019, where journalists are pursued by police over stories the government, or its agencies, want to suppress.

And where reporters and whistleblowers are sent a chilling message: we will come after you if you tell the public what it has a right to know.

A message that echoed around the world:

GEORGE ALAGIAH: Australian police have raided the offices of the country’s national broadcaster, ABC ... - BBC News, SBS, 6 June, 2019

FELICITY BARR: ... the second operation against media outlets in just two days. - Al Jazeera, SBS, 6 June, 2019

LAURA CELLIER: Journalists in Australia have condemned a police raid on the offices of the national broadcaster ... - France 24, SBS, 6 June, 2019

DORA ANAGNOSTOPOULOU: In Australia the police made a charge in the public television building ... - ERT World, SBS, 6 June, 2019

HALA GORANI: A remarkable story is happening in Australia right now ... BRIAN STELTER: It has caused press freedom groups all around the world to raise alarm bells right now. - CNN, 6 June, 2019

Last Wednesday six AFP officers rifled through thousands of items on the ABC’s computers and emails, eventually making off with around 100 documents, as the ABC’s John Lyons remarkably live-tweeted it all, calling it a “bad, sad and dangerous day”.

In a series of 68 tweets, Lyons even managed to snap the wording of the warrant, which gave the police extraordinary access, and the right to “add, copy, delete or alter” data on the ABC’s computers:

JOHN LYONS: I’ve never seen an assault on the media as savage as this one we’re seeing today at the ABC ... - ABC News Channel, 5 June, 2019

So who or what triggered the raid?

Answer, this 2017 ABC investigation, by Dan Oakes and Sam Clark, called The Afghan Files:

DAN OAKES: Tonight, we reveal serious allegations that Australian soldiers may have committed unlawful killings during Australia's longest war, and claims that the death of an unarmed Afghan civilian was covered up. ACTOR PORTRAYING ARMY WHISTLEBLOWER "CORPORAL JONES": I saw innocent people killed who didn't need to die or deserve to die ... - 7.30, ABC, 10 July, 2017

But the ABC raid was not the only one carried out by the cops last week.

The previous day, News Corp’s Annika Smethurst had her home raided over a front-page story from April last year, concerning government proposals to introduce:

SUPER SPY POWERS EXCLUSIVE Push to allow surveillance of Aussies’ phones and computers - Sunday Herald Sun, 29 April, 2018

As Smethurst told Sky News last week, police turned over her Canberra residence for seven hours:

ANNIKA SMETHURST: They went through everything. They started in my bedroom, they went through my bedside drawers, under my bed, inside my bed, through all my clothes, the pockets in my clothes, as it’s been well publicised my underwear drawer, inside handbags, Christmas decorations, inside DVDs, I didn’t even know I still owned a few DVDs, they went through page by page of every book I own, cookbooks, my sewing basket, behind picture frames. So, look, they were incredibly thorough …



- The Bolt Report, Sky News, 6 June, 2019

Both the ABC’s and News Corp’s stories relied on secret or classified documents.

But were they a threat to national security? In my view, absolutely not.

And did the public have a right to know? In my view, absolutely yes.

As News Corp’s Michael Miller told The Australian:

“It was an affront to press freedom and demonstrated an alarming escalation to silence those who publish truths the government does not want made public.” - The Australian, 6 June, 2019

It is now entirely possible that Smethurst and the two ABC journalists — Oakes and Clark — could be prosecuted for publishing their stories.

The 1914 Crimes Act that powered the raids would certainly allow that to happen.

And on Thursday, the AFP’s Acting Commissioner Neil Gaughan did not rule it out:

NEIL GAUGHAN: No sector of the community should be immune for this type of activity or evidence collection more broadly … This includes law enforcement itself, the media, or indeed, even politicians. There are criminal allegations being investigated and we cannot ignore them. - ABC News Channel, 6 June, 2019

But charges or no charges, journalists and whistleblowers will certainly be intimidated.

As Hugh Riminton reported on Ten:

HUGH RIMINTON: So in two days the two biggest news organisations in the country have been sent a message, if anyone wants to leak information about questionable practices anywhere in our national security apparatus, the Federal Police will go after them and the reporters they speak to. - Ten News First, 5 June, 2019

But bad as these two cases are, they’re not the only ones sounding the alarm.

In 2016, the AFP raided the Melbourne office of Labor’s former communications minister Stephen Conroy and the home of a Labor staffer, chasing supposed leaks about cost overruns on the NBN, although Parliament later forced them to give back the documents they seized.

And right now there are three big secrets cases before the courts:

ROS CHILDS: A former employee of the Australian Tax Office who turned whistleblower last year has spoken out for the first time, saying he almost died from stress in the ordeal that followed. - ABC News Channel, 3 June, 2019

Former ATO debt collector Richard Boyle is facing 66 assorted charges that could see him jailed for 161 years.

His crime? To tell the ABC’s Four Corners and Fairfax about the ATO’s draconian treatment of small businesses:

RICHARD BOYLE: … we were essentially ordered and directed to start doing standard garnishees on every case, and I was absolutely shocked ... That meant and I stated that we may be shutting down the wrong businesses and causing great distress to the community, and possibly even pushing people towards suicide that needed our compassion … - Four Corners, ABC, 9 April, 2018

Also being tried — in secret — is the man who leaked The Afghan Files, former defence department lawyer David McBride, who told The Project last week that he’s being prosecuted to scare off other whistleblowers:

DAVID MCBRIDE: There’s no real national security information here. It’s national shame and the government want to make sure that nobody is going to come forward and embarrass them in any way like I've done. - The Project, Channel Ten, 6 June, 2019

Also facing a secret trial are Canberra lawyer Bernard Collaery and his client, known only as Witness K, who sensationally revealed that Australia bugged East Timor offices in 2004 during negotiations over an oil deal.

Collaery, who’s facing a two-year jail term, told ABC Radio last week:

BERNARD COLLAERY: … as the former human rights commissioner Gillian Triggs said, Australia is now the least observant and the most repressive of the Western democracies. - PM, ABC Radio, 5 June, 2019

All three cases involve alleged incompetence or abuse of power by government agencies.

So did the public have a right to be told? Again, absolutely, yes.

Was their whistleblowing a threat to national security? In my view, absolutely no.

So, what role has the government played in this crackdown? It claims it had nothing to do with the latest raids or their timing:

PETER DUTTON: … the referral has been made by the Secretary of the Defence Department and the Director-General of the Australian Signals Directorate, as I understand it, they’ve made the referral to the Australian Federal Police. The Federal Police have an obligation to investigate that matter if it’s been referred to them. - Today, Channel Nine, 7 June, 2019

But the Defence Department is run by the Minister, Marise Payne at the time, who would surely have had some input into any referral.

And plenty of leaks — like this one — have not led to the AFP kicking in the journalist’s door:

EXCLUSIVE Phelps bill a security risk: ASIO MEDIVAC PLAN ‘COMPROMISES BORDER PROTECTION’ - The Australian, 7 February, 2019

That front-page exclusive in The Australian four months ago relied on leaks of a classified briefing from intelligence agencies. But it was also good PR for the government.

We heard on Friday that the AFP has closed its investigation because it claims there’s no prospect of finding the person who leaked the story to Simon Benson.

But even more to the point, it’s the government that makes the laws. And, with help from the ALP, it has been cracking down:

PAUL MURPHY: I think our parliament has failed, they’ve been caught up around this rhetoric of national security and its over application across far too broad an area. I think there is no doubt that the very public nature of these raids in combination with the deluge of legislation we’ve seen in recent years will succeed in intimidating whistleblowers from coming forward with information in the public interest and without the bravery of whistleblowers coming forward, investigative journalism becomes impossible in many aspects. - Phone interview, Paul Murphy, CEO, MEAA, 9 June, 2019

In 2017 the Turnbull government’s Espionage and Foreign Interference Bill tried to introduce penalties of up to 20 years jail for journalists just for receiving secret information, even if they never published a story.

And while that proposal was blocked by the Senate in 2015, the Data Retention Act did get through, and it’s made it far easier for police to follow the trail that journalists or whistleblowers may leave.

The new law requires telcos and internet providers to retain for two years data that will identify the sender and recipient of emails and phone calls, plus the time, date, location and device from which they were made.

The law also allows for Journalist Information Warrants that can give 21 government agencies access to that information. Warrants that are granted in secret.

As Paul Murphy from the journalists’ union explained:

PAUL MURPHY: A journalist information warrant can be issued to access the metadata of journalists, presumably to track down their sources in complete contravention of the ethical responsibilities of journalists and in complete contravention of the Commonwealth’s own shield laws which are designed to protect journalists’ sources. All of this is conducted behind closed doors, without any requirement for an advocate to be present to advocate against the granting of the warrant. It’s a very dangerous provision. - Phone interview, Paul Murphy, CEO, MEAA, 9 June, 2019

Even disclosing the existence of one of these warrants could land you in jail for two years.

However, it’s not been entirely one-way traffic.

After pressure from the media and the Senate crossbench, the Crimes Act was amended last year to allow a public interest defence for journalists publishing classified information.

And back in 2013 the Labor government introduced a Public Interest Disclosure Act to give protection to whistleblowers.

But according to Professor AJ Brown, who’s advised the government on whistleblowing laws, those protections are clearly not working:

AJ BROWN: … what these cases are really flushing out is that the protections that we assume are in place, both for whistleblowers and for journalists, that we’re not, it’s not actually true in practice. … There’s so many caveats, so many loopholes, so many qualifications that it’s very hard for anybody to be protected. - Phone interview, Professor AJ Brown, Griffith University, 7 June, 2019

One person who should be protected by the Public Interest Disclosure Act, says Brown, is ATO whistleblower Richard Boyle. Yet he’s now potentially facing a lifetime in prison.

While David McBride — who admits leaking documents to the media — may not be protected by the act because it does not cover “intelligence information” but, according to Brown, he ought to be because:

AJ BROWN: … there doesn’t seem to be any, ... any argument that this was a case of public interest reporting, and that it was in the public interest that these allegations be properly addressed and properly aired, and that that wasn’t happening until he went to the media. - Phone interview, Professor AJ Brown, Griffith University, 7 June, 2019

Boyle and McBride both tried to disclose internally, as the Public Interest Disclosure Act requires them to do, and only went public when their departments kicked back:

DAVID MCBRIDE: … I was always hoping that they might say: ‘Yeah, we can see your point. We may have pushed things a little bit too far in the heat of the moment, war fever, etc. We’re going to wind things back.’ But they didn't. Quite the opposite. They actually went for me, they tried to destroy me, they destroyed my career, they tried to force me to suicide, ruined my marriage ... - The Project, Channel Ten, 6 June, 2019

McBride’s defence — that he had a duty to tell the public what was going on — is set to be tested in court this month.

But in the meantime, will the current outcry produce real change?

The government has left the door slightly ajar, with the Prime Minister telling reporters in London:

SCOTT MORRISON: I’ve been in discussion with editors today and others and they’ve expressed their concerns to me about these issues … … as these issues are worked through in the days ahead that if there are any issues that we have to address then I’m open to discussing those. - ABC News, 6 June, 2019

Certainly there are many who believe reform is essential.

On the issue of search warrants, for example.

Lawyer and Seven West Media commercial director Bruce McWilliam successfully overturned an AFP warrant in 2014, a month after police raided Seven’s offices looking for evidence of payment to convicted drug smuggler Schapelle Corby.

He told The Sydney Morning Herald last week the law in relation to approving warrants needs to be much tougher:

"There is absolutely no hurdle or test to issuing these orders, as the police officer swears the affidavit and the magistrate rubber-stamps it. The hearing are in secret and not subjected to critical analysis," … - The Sydney Morning Herald, 6 June, 2019

And as a possible example of that, look no further than the search warrant used against the ABC which was granted by a registrar at Queanbeyan local court.

But under the law as it stands, according to former New South Wales Supreme court judge Anthony Whealy QC, there is no requirement for police seeking a warrant to produce evidence of why it should be granted:

ANTHONY WHEALY: … it’s just a really a matter of pointing to the possible offence that’s been committed … … and really no other consideration at that point in relation to the search warrant being issued would be, would need to be examined. - RN Breakfast, Radio National, 7 June, 2019

So are the latest warrants also open to legal challenge?

Chris Merritt, the legal affairs editor at The Australian, suggests the media should at least try to find out:

Instead of merely expressing outrage, the media industry should consider running a constitutional challenge aimed at striking down the legal basis for the search warrants authorising both raids. - The Australian, 6 June, 2019

And we heard today that the ABC is planning a legal challenge.

But many believe we need fundamental reform to ensure the public’s right to know what their government is doing is respected.

And one way to do that, says Peter Greste, whose reporting landed him in an Egyptian jail, is to require the prosecution to convince the court that these stories should not have been told:

PETER GRESTE: … at the moment what we see is the burden of proof resting with journalists to show why the stories are in the public interest. We think that burden of proof needs to be shifted to the authorities to show why prosecution should go ahead in the first place. And that we think would restore some of the balance and it would also underscore the importance of whistleblowers and journalists to maintaining transparency and accountability in government. - ABC News Channel, 5 June, 2019

And the head of the Australian journalists’ union agrees, but goes a bit further:

PAUL MURPHY: There should not be a charge and then a limited defence. There should be a presumption at the outset in favour of the public interest and the public’s right to know. - Phone interview, Paul Murphy, CEO, MEAA, 9 June, 2019

But offering a public interest defence just to journalists is surely not enough. Whistleblowers need it too.

According to Professor AJ Brown:

AJ BROWN: … we need a comprehensive overhaul of the law both on the media freedom side and the journalism shield law side and on the whistleblower protection side to actually make sure that all these principles are actually enshrined and done so in a consistent way that actually makes sense. - Phone interview, Professor AJ Brown, Griffith University, 7 June, 2019

And former Supreme Court judge Anthony Whealy QC backs that up:

ANTHONY WHEALY: … there should be laws to make sure that matters of this kind are exempt from criminalisation. It’s not just a question of having an offence, they shouldn’t be the subject of criminal proceedings unless there are exceptional circumstances. That’s the only true safeguard for freedom of the press. - RN Breakfast, Radio National, 7 June, 2019

And this morning ABC Chair Ita Buttrose called on the media to campaign for change and make sure it happens:

ITA BUTTROSE: I think the media itself … all of the media organisations in Australia need to get together and, and pressure the government to review the, review the laws, the rights and freedoms of the media … and protect the public’s right to know. - RN Breakfast, Radio National, 10 June, 2019

If there is a benefit of last week’s raids it is that proper protection may now be on the agenda.

Had the AFP and government set out to unite the media and legal profession and stir up public outrage, they could not have done a better job.

Perhaps we should congratulate them. Although I’m sure it was never their intention.

