ABC ALUMNI LIMITED SUBMISSION TO SENATE
STANDING COMMITTEE ON ENVIRONMENT AND
COMMUNICATIONS’ REFERENCES COMMITTEE:
Inquiry into the adequacy of
Commonwealth laws and frameworks
covering the disclosure and reporting of
sensitive and classified information
29 August 2019
______________________________________________
INTRODUCTORY STATEMENT
ABC Alumni Limited represents a community of nearly 300 former staff and
supporters of the Australian Broadcasting Corporation – many of them
experienced reporters, editors, and senior news managers. We support fully
funded, high quality, independent, ethical and free public media in Australia.
Our objectives are to promote excellence across all media platforms through
advocacy, education, mentoring, public forums and scholarships.
On 12 August 2019, ABC Alumni made a submission to the inquiry into press
freedom being conducted by the Joint Parliamentary Committee on
Intelligence and Security. That submission attempted not to go over the same
ground as other substantial submissions from media organisations,
academics, and legal experts, many of whose concerns we share. This
submission, similarly, does not attempt to cover all of the terms of reference of
this inquiry, but to focus on a particular matter that has received too little
attention – the use of a law that was never intended, in our contention, to be
applied to the leaking of secret information but which gravely threatens the
media’s ability to hold government to account.
EXECUTIVE SUMMARY
This submission relates to two of the inquiry’s terms of reference.
(a) disclosure and public reporting of sensitive and classified information,
including the appropriate regime for warrants regarding journalists and
media organisations and adequacy of existing legislation.
ABC Alumni is deeply concerned that in the search warrant that the Australian
Federal Police (AFP) obtained on 3 June 2019, the AFP stated that it suspected
an ABC reporter of “dishonestly receiving stolen property”, contrary to s132.1 of
the Criminal Code.
It notes that Major David McBride has been committed for trial on a charge,
among others, of theft of Commonwealth property under s131.1 of the Criminal
Code.
This part of the Criminal Code has, to our knowledge, never previously been
used in relation to leaked Commonwealth information. Section 132.1 concerns
the receipt of stolen property, not the disclosure of secrets; it does not relate to
publication, but merely to receipt; it contains no public interest defence for
journalists; and it does not require the consent of the Attorney-General.
If it were successfully used to prosecute an ABC reporter it would imperil a wide
range of public interest journalism that seeks to hold governments to account.
(e) mechanisms to ensure that the Australian Federal Police have sufficient
independence to effectively and impartially carry out their investigatory and
law enforcement responsibilities in relation to politically sensitive matters.
The chronology of events that we outline in the first part of our submission
suggests the possibility that, so far from having insufficient independence, the
AFP has resorted to the “theft” and “receiving” offences in the Criminal Code
precisely because a prosecution under those sections does not require the
consent of the Attorney-General, unlike the secrecy laws that were available
to the AFP.
We fear that in this instance the AFP, apparently supported by the
Commonwealth Director of Public Prosecutions (CDPP), is attempting to
evade the supervisory powers of the responsible minister.
SUBMISSION
1. For full understanding of this submission, it is important to be aware of the
following chronology:
CHRONOLOGY OF EVENTS RELATING TO THE ABC’S ‘AFGHAN FILES’
2. In July 2017, the ABC published a series of stories online, and aired a
report on 7.30, concerning the activities of Australian special forces during the
Afghanistan conflict. It reported that the stories were based on “hundreds of
pages of secret defence force documents leaked to the ABC”. Most of the
events described had occurred five years earlier.
3. Within days, the Secretary of the Department of Defence and the Chief of
the Defence Force referred the leaking of those secret documents to the
Australian Federal Police.
4. In February 2018, the AFP searched the home of a military lawyer, Major
David McBride.
5. In 5 September 2018, Major McBride was charged with the theft of
Commonwealth property, contrary to section 131.1 of the Criminal Code. It is
understood that McBride did not deny that he was the person who had leaked
the documents to the ABC.
6. On 13 September 2018, the AFP requested that three ABC employees
participate in interviews or assist with the AFP investigation. They refused on
4 October.
7. On 29 January 2019, the AFP again contacted the ABC, seeking their
agreement to a search of ABC premises in relation to the investigation.
8. On 28 February 2019, McBride was arrested at Sydney airport as he was
about to depart for Europe.
9. On 7 March 2019, McBride was charged with additional offences:
unlawfully communicating military information contrary to s73A(1) of the
Defence Act 1903, and unlawfully disclosing a Commonwealth document
contrary to s70(1) of the Crimes Act 1914.
10. On 1 April 2019, the AFP emailed two employees of the ABC, reporter
Dan Oakes and producer Sam Clark, asking that they provide finger and palm
prints. According to published reports by their ABC manager, John Lyons, the
emails stated that the two were suspected of three offences, the “mirrors” of
those with which Major McBride had already been charged: “dishonestly
receiving stolen property” contrary to s132.1 of the Criminal Code; “unlawfully
obtaining military information” under s73A(2) of the Defence Act 1903; and the
receipt of prescribed information under s79(6) of the Crimes Act 1914. They
declined to provide their fingerprints.
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11. On 30 May 2019 McBride pleaded not guilty to all the offences with which
he has been charged, and was committed for trial in the ACT Supreme Court.
It is understood that he will defend himself on the grounds that he was acting
in the public interest.
12. On 3 June 2019, the AFP obtained a warrant from a registrar of the NSW
Local Court in Queanbeyan authorizing it to search the ABC’s headquarters in
Ultimo, Sydney, for a very wide range of documents. The warrant stated that
the AFP was seeking evidence that McBride had committed all three of the
offences with which he had been charged; but it named only one of the two
ABC personnel whose fingerprints had been sought on 1 April, namely
reporter Dan Oakes; and, significantly, it said he was suspected of
committing only two of the offences contained in the email he had
received on 1 April: the offence under s79(6) of the Crimes Act was not
mentioned in the warrant.
13. On 5 June 2019, a team of AFP officers executed the search warrant on
the ABC’s premises. The search lasted some 8 hours, and the AFP seized
some hundreds of documents, which, however, will not be available to the
AFP’s investigators unless a legal challenge by the ABC regarding the legality
of the search warrant fails.
14. On the same day, 5 June, an AFP statement claimed that the search of
the ABC, and a search a day earlier of News Corp reporter Annika
Smethurst’s home, “relate to separate allegations of publishing classified
material contrary to provisions of the Crimes Act 1914, which is an extremely
serious matter … The search warrants related to secrecy offences in Parts 6
and 7 of the Crimes Act 1914.”
[Comment: ABC Alumni have been unable to sight the Smethurst search
warrant, but so far as the ABC search warrant is concerned this statement is
plainly untrue. No allegation that the ABC’s reporter had breached the
Crimes Act was named in the warrant, and no reference was made in the
warrant to the publishing of any material at all. The offences allegedly
committed by Dan Oakes and cited in the warrant relate to receiving, not
publishing, information.]
15. On 19 June 2019, Attorney-General Christian Porter publicly stated,
apparently in ignorance of the terms of the search warrant, that “there is
absolutely no suggestion that any journalist is the subject of these
investigations”. He said that any prosecution of journalists under the relevant
legislation would require his consent, and that “I would be seriously disinclined
to approve prosecutions [of journalists] except in the most exceptional
circumstances”.
16. On 4 July 2019, the Morrison government announced that it had asked the
Joint Parliamentary Committee on Intelligence and Security (PJCIS) to hold
an inquiry into the impact of the exercise of law enforcement and intelligence
powers on the freedom of the press.
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17. On 12 July 2019, Home Affairs Minister Peter Dutton publicly defended
the AFP searches and rejected calls for the police to drop action against
journalists. “If you've got top secret documents and they've been leaked, it is
an offence under the law and police have an obligation to investigate a matter
referred to them ... and they'll do that." Note that Mr Dutton did not refer to
publishing secret documents.
18. On 8 August 2019, in an apparent U-turn, Mr Dutton issued a Direction to
the AFP which stated, in part, that “I expect the AFP to take into account the
importance of a free and open press in Australia’s democratic society and to
consider broader public interest implications before taking investigative action
involving a professional journalist or news media organisation”. The Directive
said nothing about whether or in what circumstances journalists might be
charged with criminal offences.
19. On 14 August 2019 the AFP, along with other law enforcement and
security agencies and government departments, appeared at a hearing in
Canberra of the PJCIS press freedom inquiry. The AFP was not asked any
questions about the specific offences named in the ABC search warrant, or
indeed about whether any ABC journalists were likely to be charged. Asked
about whether Ms Annika Smethurst might be charged, Commissioner Colvin
stated that “the investigation is ongoing. So I’m not drawing anyone in or out
… who we may determine has committed a crime.” The AFP made it clear
that the investigation was in temporary abeyance while the legality of both
search warrants was determined in separate court actions.
[END OF CHRONOLOGY]
20. In relation to the chronology cited above, ABC Alumni would make the
following points:
NEW AND OLD SECRECY OFFENCES
21. Prior to the passage of the National Security Legislation Amendment
(Espionage and Foreign Interference) Act 2018, which came into force in
December 2018, the main legislation relating to the leaking of secret
information by Commonwealth officers was contained in Parts 6 and 7 of the
Crimes Act 1914: specifically, s70, which criminalises the unauthorised
disclosure to a third party of ANY information which Commonwealth officers
acquire in the course of their duties and which it is their duty not to disclose;
and s79, headed “official secrets”, and relating to information that it is an
officer’s “duty to keep as secret”. Subsection 79(6) makes it an offence,
punishable by 2 years imprisonment, for a person to receive such information
from a Commonwealth officer, knowing it to be secret. It is not necessary for
the person to publish or communicate the information further for the offence to
have been committed.
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22. Section 85 of the Act specified that any prosecution under s79 could
proceed only with the consent of the Attorney-General.
23. Parts 6 and 7 of the Crimes Act, which contained these sections, were
repealed by the National Security Legislation Amendment Act and, broadly
speaking, replaced by s122 of the Criminal Code, headed “secrecy of
information”.
24. As the Committee will be aware, the new legislation specifies that for an
offence to be committed, the information disclosed by a Commonwealth
officer must be shown to be “inherently harmful” or “harmful” to “Australia’s
interests.” Those interests are defined very broadly, but they do put some
limit on what information can incur criminal penalties. However, the penalties
for breaching s122 are more severe than those in the old Crimes Act: up to 7
years imprisonment, or 10 years for an “aggravated offence”.
25. Section 122.4A makes it an offence for a third party to “deal with”
information that came from a Commonwealth officer and that is secret, top
secret or harmful in other specified ways. There is a more severe penalty (up
to 5 years imprisonment) for “communicating” such information.
26. However, under s122.5(6), there is a specific defence available for a
professional journalist who deals with or communicates such information and
who “reasonably believed that engaging in that conduct was in the pubic
interest”.
27. Under s123.5, any prosecution for offences under s122 needs the written
consent of the Attorney-General.
28: COMMENT: As many submissions to the PJCIS inquiry made clear,
media organisations and many others consider the defence under s122.5(6)
inadequate, and are seeking an exemption for bona fide journalism, rather
than a defence. But in any case, as the AFP has stated on numerous
occasions, the new legislation does not apply to the Afghan Files case,
because the alleged offences occurred before it came into force. Our concern
is that too much of the discussion following the ABC raid has ignored the fact
that the AFP and the CDPP appear to be intent on using another part of the
Criminal Code, to which no public interest defences apply, no consent by
the Attorney-General is required, and which would potentially
criminalise ANY journalism that involved leaked government
documents.
THE ‘THEFT’ OFFENCE
29: In addition to offences under the old s70 of the Crimes Act and the
Defence Act 1903, David McBride has been charged with stealing
Commonwealth property under s131.1 of the Criminal Code. Indeed, that was
the first offence he was charged with, months before he was charged with the
additional “secrecy” offences.
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30. The subsection is headed “Theft” and says that a person commits an
offence if:
(a) the person dishonestly appropriates property belonging to another with
the intention of permanently depriving the other of the property; and
(b) the property belongs to a Commonwealth entity.
31. Any normal reading of this section would convey the meaning that it
applies to real property – land, or money, or a government-owned laptop - not
to documents (presumably copies, rather than originals), which after all
contain information that the Commonwealth still retains.
32. Section 70 of the Crimes Act is much more obviously relevant to the
activity of which McBride is accused. So why did the AFP choose to charge
McBride initially solely with “theft”?
33. We note that, without charging McBride with theft, it would not be
possible to threaten to charge the ABC’s reporter with the offence of
“dishonestly receiving stolen property” under s132.2 of the Criminal Code,
which is precisely what the AFP’s search warrant, and its email of 1 April, both
do.
34. The threatened use of this “receiving” offence against a journalist is
deeply alarming because:
• It applies to the act of receiving “stolen property” (presumably, in
this case, documents and/or information), not publishing it.
• It would apply to the receipt of ANY “stolen” Commonwealth
document or information, regardless of whether it is classified as
secret, or its disclosure harmful in any way to Australia’s
interests.
• Prosecution under this section does not need the consent of the
Attorney-General.
• There is no public interest or journalism defence.
• The maximum penalty for an offence under s132.1 is ten years
imprisonment – as much as the most severe sentence in s124.
35. It is particularly alarming that David McBride has not merely been
charged with “theft”, but committed for trial on that charge – in other words,
that the CDPP, and the magistrate who committed him for trial, clearly think
that conviction is a real possibility. If he were convicted for “theft”, it would
make the prosecution of Dan Oakes for “receiving” all the more possible.
36. Even if, following the Minister’s Direction (see paragraph 18), the AFP
and/or the CDPP decide not to charge or prosecute Oakes for “receiving”, the
mere threat that such an offence could apply to a normal journalistic
endeavour would have a dramatically chilling effect on a wide range of
public interest journalism.
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QUESTIONS:
37. We urge the committee to ask the AFP the following questions:
38. Question 1: Who suggested to the AFP that it was appropriate to charge
David McBride with “theft” in the first instance, rather than with releasing
confidential information? Why did the AFP do so? Was it because that
offence carries with it a “mirror” offence that could be applied to the ABC
journalists, that of “receiving”?
39. Question 2: Why did its Commissioner and Deputy Commissioner claim,
on the days following the ABC and Smethurst “raids”, that they were pursuing
offences under Parts 6 and 7 of the Crimes Act, while avoiding any mention of
the “theft” offence?
40. Question 3: Why, having indicated on 1 April that they suspected Oakes
and Clark of breaching s79(6) of the Crimes Act, was that offence not
mentioned in the search warrant obtained on 3 June?
41. Question 4: Was it because, between 1 April and 3 June 2019, the AFP
or the CDPP sounded out the Attorney-General’s office about the likelihood of
receiving consent to a prosecution of the ABC journalists under s79, and
received an answer similar to that which Mr Porter gave publicly on 19 June,
that he would be “seriously disinclined” to consent to such a prosecution?
42. Question 5: In the light of Mr Dutton’s Direction that it should “take into
account the importance of a free and open press in Australia’s democratic
society”, does the AFP still consider that the prosecution of Dan Oakes, or
any other journalist, for “receiving stolen property” would be an action that
falls within the broader public interest?
CONCLUSION
43. ABC Alumni shares the concerns of media organisations and others
about the scope of the counter-terrorism and secrecy legislation passed by
the Federal parliament since September 2001.
44. ABC Alumni also believes that there is a strong case for more protection
for whistleblowers, particularly if they consider that the issues that concern
them have not been dealt with adequately by internal regulators.
45. But the AFP’s use, in relation to the Afghan Files, of s131 and s132 of the
Criminal Code, which have nothing to do, on their face, with terrorism, or
national security, or the preservation of Commonwealth secrets, appears to
have “snuck under the radar” of even the most vigilant guardians of our civil
liberties. We believe it has the potential to have as chilling an effect on the
media’s ability to hold government to account as any of the security legislation
much more commonly cited as posing such a threat.
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46. We believe that the chronology we have outlined raises the possibility
that, by making inappropriate use of the “theft” offence, the AFP is attempting
to avoid the need to gain the Attorney-General’s consent to prosecution of a
journalist.
47. ABC Alumni recommends that s131 and s132 of the Criminal Code
should be amended in such a way that they cannot be used to prosecute
any offence that is covered by s122, with the safeguards for public
interest journalism that that section includes.
ABC Alumni representatives are available to appear at the Senate inquiry
hearings, preferably in Sydney.
Submitted on behalf of ABC Alumni by:
Jonathan Holmes (former executive producer, Four Corners and 7.30 Report,
former presenter, Media Watch)
Authorised by:
Matt Peacock and Helen Grasswill, Directors, ABC Alumni Limited [ACN 628
088 371]
Contacts:
Jonathan Holmes: [email protected]
Matt Peacock: 0408 168 479
Helen Grasswill: 0418 164 349