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ABC loses AFP raid challenge

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In February 2020 the ABC suffered a crushing defeat in the Federal Court, in its challenge to the validity of an AFP search warrant on its Ultimo headquarters relating to a series of stories known as The Afghan Files. Jonathan Holmes has been following the case closely and offers these observations of the judgment.

By Jonathan Holmes, 17 February 2020


Over eight months ago, on June 5th last year, Federal Police officers executed a search warrant on the ABC headquarters in Ultimo, Sydney, and took away some 120 documents.

The warrant indicated that the Feds were looking for evidence to support their suspicion that a former military lawyer, Major David McBride, had committed three criminal offences, and that ABC reporter Dan Oakes may have committed two.

One of the offences allegedly committed by McBride – unlawfully revealing military information contrary to section 73(2) of the Defence Act 1903 – carries a maximum penalty of life imprisonment. So does the parallel offence of which Oakes is suspected – unlawfully receiving such information.

The second offence – stealing Commonwealth property, contrary to s132 of the Criminal Code – carries a maximum penalty of ten years. So does the parallel offence of which Oakes is suspected – unlawfully receiving stolen Commonwealth property.

The third offence, that, as a Commonwealth officer, McBride revealed information contrary to the notorious s70 of the Crimes Act, is worth a mere two years in prison. There is no parallel offence for receiving in that section of the Act (which has now been repealed, but was in force at the time the secrets were leaked).

The search warrant related, of course, to a series of ABC stories, collectively known as The Afghan Files, which were already two years old. They concerned war crimes allegedly committed by Australian special forces in Afghanistan eight years ago.

The Feds agreed to keep the documents under lock and key until the ABC’s challenge in the Federal Court was adjudicated.

That happened yesterday. The ABC suffered a crushing defeat.

The judgment of Federal Court Justice Wendy Abraham could not have been more comprehensively dismissive of the ABC’s arguments. I’ve only had a chance to read her 100-page judgment once over lightly, but here are some of its conclusions:

· Despite seeking documents, emails, scripts, post-it notes, recordings etc that made reference to dozens of people and categories, including the ADF, the ABC, 7.30, Gaven Morris, Afghanistan, and Special Forces, the warrant was not too broad, because only documents relating to the offences named in the warrant would fall within its purview.

· A clause in the Defence Act 1903 that criminalises the revelation of information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information does not relate merely to physical buildings and material, but to information such as the special forces’ rules of engagement, which the Afghan Files described (albeit as they had been seven years earlier).

· There is no problem with the application of the provision of the Criminal Code that outlaws theft of Commonwealth property to this case of passing on information, even though the warrant gives no indication of what, precisely, has allegedly been stolen or received.

· The judge accepted the evidence of an army Lieutenant General that even partial disclosure of the special forces’ Rules of Engagement can be helpful to an enemy and imperil the lives of serving ADF personnel. The judge called it “a most serious offence”.

· The evidence of Matthew Ricketson, professor of journalism at the University of Canberra, that the revelation of the identity of confidential whistleblowers in the military or security services would have a chilling effect on others coming forward was discounted on the grounds that he had given no evidence of expertise in dealing with such sources himself.

· Journalists have no absolute right to keep their sources of information confidential. The interests of justice prevail, and in any case section 126K of the Evidence Act, which lays down that journalists should not be compelled to reveal their sources in court proceedings except in special circumstances, does not apply to search warrants.

· In fact, one of the judgment’s pithiest paragraphs, no 214, states: [The ABC’s] submission elevates source protection to a position which, on the current state of the law, it does not have.

· The High Court ruling about an implied constitutional right to freedom of expression in political matters has no bearing on this case, and there was no requirement for the Recorder who authorized the warrant to consider whether it applied.

· The ABC’s plea for the right to keep its sources confidential is severely weakened, in this case, by the fact that Major McBride has reportedly confessed to several newspapers that he is the principal (though perhaps not the only) source of the secret documents on which The Afghan Files were based. The warrant cannot be invalidated just because the documents in possession of the AFP might reveal the identity of other sources.

· To rub salt into the ABC’s wounds, the judge mentions at the end of her judgment that even if she had found in favour of one or more of the ABC’s arguments, she would probably not have ordered that the documents be returned unexamined to the ABC.

· The ABC is required to pay the legal costs of the AFP.

All this should come as no surprise. The Australian courts – and particularly the Federal Court – have demonstrated time after time that the freedom of the press weighs little in the scale, compared with the interests of civil litigants or public prosecutors. The ABC may of course appeal Justice Abraham’s decision, but there is little reason to hope that she will be found to be in serious error by her superior judges.

News Corp has chosen to go directly to the High Court to challenge the validity of the search warrant executed on the home of its reporter Annika Smethurst (relating to an entirely different story). That judgment is expected soon. Perhaps they will get a different result, but don’t hold your breath.

David McBride has been charged with all three criminal offences mentioned in the warrant. His trial in the Federal Court in Canberra will begin in March. It is understood that he will plead not guilty on the grounds that he was acting in the public interest. Good luck with that.

Meanwhile Dan Oakes and his producer, Sam Clark, have the prospect of prosecution hanging over them. The AFP has not concluded its investigation, no doubt because, it would argue, it needs to examine the documents it seized before coming to a decision – something it will now be able to do.

But if McBride is found guilty, it is hard to see why the police would not seek to prosecute Oakes on the parallel offences.

The best hope for the ABC’s journalists is that, in the wake of the outcry that followed the raids last year, the Attorney-General, Christian Porter, issued a directive to the Commonwealth Director of Public Prosecutions. The CDPP has to receive his written approval before prosecuting journalists for a number of offences, including breaches of s73 of the Defence Act and s132 of the Criminal Code.

In other words, whether an ABC journalist is to be put on trial for receiving information from a whistleblower on a matter of public interest is now, essentially, a political decision.

I think there is some hope that Porter will refuse permission, if only because the ensuing outcry, overseas as much as in Australia, would not be worth the candle. After all, the main object of the Government, and the ADF, is to discourage the leaking of secrets by terrifying prospective whistleblowers, and that job has already been done.

Welcome to Australia: our wide, brown, and secretive land.

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