The Australian Federal Police ‘raids’ on the ABC and a lone News Ltd journalist have been taken to signal a new era of scrutiny when confidential government files are leaked to the media. The media has gone overboard on the ‘journalism is not a crime’ front. As a former journo, I have adopted the Media, Entertainment and Arts Alliance (MEAA) Facebook frame in solidarity. But it is interesting to learn that that on June 5, the AFP was unable to rely on the much-feared espionage and foreign interference laws. An AFP spokesman confirmed that the revised secrecy offences inserted into the Criminal Code did not apply as the ‘alleged conduct’ occurred before the new law was enacted (in late 2018). The same can be said of a separate ‘raid’ on the home of News Ltd journalist Annika Smethurst.
The AFP said in a statement there was no link between the Smethurst and the ABC search warrants, which relate to separate allegations of publishing classified material ‘contrary to the provisions of the Crimes Act 1914’.
Barrister Gray Connolly, commenting in his blog Strategy Counsel, argues that the events of June 5 hardly constituted a ‘raid’. Much like the time on February 1, 2018, when ASIO visited ABC headquarters in Brisbane and Sydney to retrieve classified documents which had ‘accidently’ ended up there, the ABC knew the authorities were coming. On June 5, AFP officers signed in at the ABC front counter and the search was conducted peacefully.
Connolly also argues that just as the media claims it has rights to publish in the public interest, the government has rights and indeed a moral obligation to protect secrets, particularly those applying to Defence matters. And he exposes the folly of media calls for a US-style Bill of Rights to protect journalists, pointing to successive US governments pursuing whistleblowers, itself a threat to press freedom.
Law lecturer Rebecca Ananian-Welsh of the University of Queensland argues that the raids on Australian media present a ‘clear threat to democracy’. Ananian-Welsh, writing for The Conversation, said these developments were hardly a surprise, given the expansion of national security laws, notably enhanced data surveillance powers and the ‘secrecy’ offences introduced in late 2018.
“The crackdown of the past few days reveals that at least two of the core fears expressed by lawyers and the media industry were well-founded: first, the demise of source confidentiality and, secondly, a chilling effect on public interest journalism.”
Former head of ASIO Dennis Richardson told ABC Radio that (government) agencies needed to be “cautious” about referrals to the AFP.
“If you refer a matter to the AFP they take control of that, and it goes where it goes – they drop some, they pursue others,” he said.
Richardson understood the emotional reaction to the raids, but said it was “misplaced” to suggest the AFP was trying to intimidate the media.
“It might have had the consequence of that, but everything I know about the AFP would lead me to believe that the AFP is not in the space of deliberately setting out to intimidate the media.”
Nevertheless, the new secrecy laws have teeth, even if so far they have not bitten anyone. In an unprecedented display of bipartisan muscle, 15 competing media outlets and the journalists’ union last year lodged a submission to Parliament attempting to circumvent the espionage and foreign interference laws. Media publishers unsuccessfully sought an exemption for working journalists and now have to rely upon a ‘public interest’ defence. The new laws expanded the definition of espionage to include mere possession of classified documents, rather than the old offence of ‘communicating’ secrets.
This arguably makes working journalists, researchers and indeed anyone who physically handles leaked documents vulnerable to prosecution. Journalists are also fearful of controversial laws introduced last year which allow authorities to co-opt telecommunications companies to assist them in their investigations.
It’s a long way from the unruly 1970s, when Canberra leaked like Tim Finn’s lyrical boat. Political journalists made free with Cabinet secrets and leaked confidential information, earning the 1970s the sobriquet “the Xerox era”. This was because so many of the leaked documents were photocopied and furtively passed on.
One notable leak was Mungo MacCallum’s detailed story in 1972 of Australia’s rising opposition to the Vietnam War. The story was based on highly classified cables recording the Whitlam government’s criticism of US bombing operations in Vietnam (and the US government’s response).
The Sydney Morning Herald’s Philip Dorling, in a 2013 feature about famous political leaks, explained how MacCallum was so careful to cover his tracks he flew from Canberra to Melbourne to deliver the story in person to his then employers, The Nation Review. As Dorling described it, the story was “the equivalent of a political and diplomatic hand grenade”. Dorling says MacCallum was interviewed by the Commonwealth Police (forerunner of the AFP), and asked to reveal his source and hand over the leaked documents. He did neither, telling Dorling the affair was investigated in a ‘desultory’ way. The source of the leak was never uncovered.
If there’s a point to this, MacCallum, 77, is still writing fearless commentary about Australian politics. Dorling, a senior writer who has himself been raided twice by Federal police, made this prophetic observation in April 2013:
“Given the pervasive use of electronic devices and the evidence they produce, it is probably only a matter of time before a journalist is prosecuted for the little-known federal offence of knowingly receiving an unauthorised disclosure of Commonwealth government information.”
There were no such constraints involved with the 20th century’s biggest political scoop. In 1980, political journalist Laurie Oakes climbed his way to the top of the Canberra Gallery flagpole by publishing the entire Federal Budget, the day before PM John Howard was scheduled to table the document in Parliament. Oakes told The Drum how he delivered one of the biggest leaks in Australian media history.
“I had a copy in my hand for a total of 15 minutes and garbled into a tape and read the whole budget. Later I had to transcribe my own garble, which was quite difficult.”
Governments have themselves been to blame for unauthorised leaking. Last year secret Federal Cabinet files dating back 10 years were found in two old filing cabinets, bought from a second hand shop by an ACT farmer. The farmer handed the documents over to the ABC. After some judicious publication, ASIO ‘raided’ the ABC to secure the Cabinet secrets. The ABC subsequently negotiated the return of the documents.
An investigation by the AFP found there was no criminal or malicious intent involved as the department had simply ‘lost track of’ the files. While the AFP investigation was not made public, Department of Prime Minister and Cabinet secretary Martin Parkinson reported the results of the AFP probe and released a review by former Defence Secretary Ric Smith, urging reforms to security measures.
Smith’s review, which seeks to prevent a repeat of accidental leaking, reveals much about the strengths and weaknesses of government protection of secret data. Not the least is difficulty in recruiting, retaining and training staff. Smith also warns of the potential for similar incidents to occur in every government department.
The more serious implications of accidental leaking are the risks for innocent outsiders being caught by the new secrecy laws. Consider this a warning, should you ever find confidential documents at the local tip.
FOMM back pages https://bobwords.com.au/keeping-cabinet-secrets-safe/