THIS DOCUMENT HAS BEEN DECLASSIFIED AND RELEASED IN … · 2021. 2. 19. · No. The AFP at no time approached the Attorney General’s office or asked the CDPP to approach the Attorney

THIS DOCUMENT HAS BEEN DECLASSIFIED AND RELEASED IN ACCORDANCE WITH THE

FREEDOM OF INFORMATION ACT 1982 (COMMONWEALTH)

BY THE AUSTRALIAN FEDERAL POLICE

Media companies G.

ABC Alumni Submission H.

FOI CRM 2020/356 Folio - 2













• 8.40 There is precedent in Australian law and in regulation for providing guidance on the meaning of ‘public interest’, including the public interest exemptions in the Freedom of Information Act 1982 (Cth).[28]

• 8.41 A number of stakeholders expressed support for including a non-exhaustive list of factors in the Act.[29]

• 8.42 Other stakeholders said that the Act should not provide guidance on the meaning of public interest.[30] The Law Institute of Victoria submitted:

• This is a phrase commonly used in legislation and one with which courts are

familiar. ‘Public interest’ is a broad concept that is flexible enough to respond to the facts and circumstances of any particular case. Given that privacy is fact and context specific, it is appropriate to keep concepts such as ‘public interest’ broad and flexible.[31]

• 8.43 Alternatively, broad concepts which go to the meaning of public interest could go in the objects section or the preamble of the Act.

Which public interests should be listed? • 8.44 Article 8 of the European Convention on Human Rights, which recognises

the right to respect for private and family life, provides that there should no interference by a public authority with the exercise of this right:

• except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

• 8.45 The public interests that will perhaps most commonly conflict with a plaintiff’s interest in privacy are the public interest in freedom of speech and in a free media.[33]

• 8.46 Many who oppose a new cause of action for privacy fear that it will impede freedom of speech and the freedom of the media. In the absence of a human rights legal framework in Australia, it seems important for the statutory cause of action for serious invasion of privacy to give express recognition to the public interest in freedom of speech and freedom of the press.





• 8.47 When balancing an interest in privacy with a public interest in freedom of expression, the nature of the expression will be relevant. Not all speech is of equal value to the public. Political communication, for example, should be given considerable weight in the proposed balancing exercise, particularly considering that freedom of political communication is implied in the Australian Constitution.[34]

• 8.48 In Campbell, Baroness Hale LJ said that there are ‘undoubtedly different types of speech, just as there are different types of private information, some of which are more deserving of protection in a democratic society than others’:

• Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life. Intellectual and educational speech and expression are also important in a democracy, not least because they enable the development of individuals’ potential to play a full part in society and in our democratic life. Artistic speech and expression is important for similar reasons, in fostering both individual originality and creativity and the free-thinking and dynamic society we so much value. No doubt there are other kinds of speech and expression for which similar claims can be made.[35]

• 8.49 Other matters of public interest may also conflict with privacy interests. The ALRC has listed some of these in Proposal 8-2.

• 8.50 Finally, it should be noted that privacy is also a public interest, not merely a personal interest. Although it is not included in the list proposed above which deals with countervailing matters of public interest, the ALRC considers that the public interest in respecting privacy should be considered in the proposed balancing exercise.








• PID legislation needs amendments. • Private sector regime has leaped ahead the public sector in relation to whistle-

blowers. • The whistle-blower regime should be overseen by independent courts.

Independently of industry, Government and the person concerned. ABC Alumni Limited

• Criminal code should be amended to protect whistle-blowers. • AFP QoNs about communication between AFP and HA about which offences

Oaks/Clarke would be. Where did the offence come from in relation to Oaks/Clarke? Suspicions surrounding why the AG wasn’t consulted.

• Reference a/Commissioner press conference and the offences of the warrant. Reference the Au Pair matter – whether the AFP regards Unauthorised disclosure as theft? Is this the first time this provision has been used?

• Ministerial Direction has been comforting since issued.

Public Interest Journalism Initiative (Associate Professor Margaret Simons & Mr Gary Dickson)

• Not satisfied with the journalism definition – it is not broad enough. • Would like data retention to be linked with current legislation. • PID Act requires improvement. • State/Territory/Commonwealth definitions of journalist don’t link in with one

and other. • The warrants have had an effect on whistle-blowers.

Alliance for Journalists' Freedom (Professor Peter Greste, Mr Peter Wilkinson and Mr Chris Flynn)

• Lack of trust between media, national security agencies and private sectors. • Proposed a taskforce be set up to regain whistle-blowers confidence. • The general lack of public trust with the media was exasperated by the AFP

warrants. • There should be amendment of current legislation to ensure journalists cannot

be prosecuted. • Morrison government declined invitations to attend media summit on 26th

August – Dreyfus attended.

Associate Professor Johan Lidberg and Dr Denis Muller in their personal capacity • Trust in journalism is at an all-time low. • Suspicious of the difference in AFP’s responses to the ASIO leak and the ABC /

Smethurst cases. • In regards to ASIO leak 200 suspects should not be an insurmountable barrier

for police. The police should have invested the resources. • The situation is made worse by having a politician (AG) is making decisions about

prosecutions. Journalism Education and Research Association Australia





(Associate Professor Johan Lidberg) • Suggests there should be a self-regulating body of journalists to create a clearer

definition of ‘journalist’ that is protected by law.








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? No. The AFP at no time approached the Attorney General’s office or asked the CDPP to approach the Attorney General’s office. The process for obtaining the “consent to prosecute” of the Attorney General, is undertaken by the CDPP and only after the full brief of evidence has been provided by the AFP, and the brief of evidence has been appropriately considered by the CDPP. 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” is in the public interest? Whilst the investigation is ongoing it is inappropriate to speculate on whether a journalist may or may not be charge or on what charges may be considered appropriate to the circumstances. The consideration of a “free and open press” will be taken into consideration as part of all facets of “public interest” considerations.











ANSWERING QUESTIONS SEEKING DETAILS OF INVESTIGATIONS (ONGOING OR FINALISED) • Any details of investigations or police methodology

o Which powers to use and when (covert or overt) o Who to investigate / question or approach for cooperation o Timing of warrants (except to say not directed by Minister / Govt /Department) o Specifics in relation to warrants o General overview of investigations / police methodology

• Current investigation (e.g. Op WOOLF and Op KLASIES) or details of past (any) investigations

Whether any investigations or special projects (SD/ TI /CAW) have been used on particular person or class of persons.

ANSWER – SUGGESTED WORDING That question goes into the specifics of operational matters and investigations, and I am not prepared to provide that level of detail in a public forum. IF PRESSED: I am conscious this is a public forum and it is not appropriate to provide this information here. The AFP will need to consider whether the answer to this question is one over which the AFP might make a claim of Public Interest Immunity. This will require further consultation and inquires and I will take that question on notice. IF FURTHER PRESSED: The AFP could seek to make PII either because it would reveal police methodology, OR because there is an ongoing investigation.

ANSWERING QUESTIONS SEEKING DETAILS OF INVESTIGATIONS (ONGOING OR FINALISED) WHICH INCLUDES PERSONAL INFORMATION /WITNESS DETAILS

• Request to identify suspects or witnesses spoken to in any investigations • Who to investigate / question or approach for cooperation

ANSWER – SUGGESTED WORDING I’m conscious this is a public forum and therefore it is not appropriate to provide that information here. IF PRESSED: That question goes into the specifics of operational matters and investigations. It also goes to the identity and privacy of individuals who are private citizens and who, in so far as they may have been a suspect, have not been charged with an offence. Therefore, it would be an unreasonable disclosure of their personal information. IF FURTHER PRESSED: Successful police investigations rely on information from the public and the willingness of the public to cooperate with Police. Where people have provided information or cooperated with the police, including providing a witness statement, and the matter has not (or not yet) proceeded to court, to reveal their identity in a public forum would be an unreasonable disclosure of their personal information. IF REALLY FURTHER PRESSED: The AFP will need to consider whether the answer to this question is one over which the AFP might make a claim of Public Interest Immunity. This will require further consultation and inquires and I will take that question on notice.

QUESTIONS ABOUT JIW (BEYOND STATISTICS ON HOW MANY HAVE BEEN ISSUED) FOI CRM 2020/356 Folio - 15























How many investigations into journalists have there been in the last 10 years?

• The AFP does not keep a register of journalists and we do not keep statistics on the number of investigations that may involve a person who happens to be employed as a journalist.

• There are a number of offences in Cth and State legislation that relate to the work of journalists and the media.

o Offences for breaching court issued suppression and non-publication orders.

o State offences against covert recording of private conversations.

o Criminal defamation offences in State law.

o Offences under the Broadcasting Services Act.

o The new abhorrent violent material offences.

E.g. publication of the Christchurch attack on a public website.

(Not all of these offences are within the AFP’s responsibility to investigate.)

Of course journalists can also be investigated for criminal offences that are totally unrelated to their work as journalists.

Would you agree there are certain types of information that are clearly in the public interest to be released?

• Commonwealth Government entities, including the AFP, operate under the Protective Security Policy Framework (PSPF) which sets clear parameters around classification, use and storage of material.

o Those parameters relate to the protection of information and assets, national interests, and the safety of individuals.

o Commonwealth officials are not authorised to apply a security classification to prevent embarrassment to an individual or organisation.

• When a classified document is released there are always concerns about the impact and consequences such a release may have.

o AFP investigators also liaise with the referring agency to get a clear picture of the possible risks and consequences, and the probability of them occurring.

o Those risks and consequences may not be obvious to the public or a journalist, or even to an individual Commonwealth official.

• I want to be clear, press freedom is just one consideration in public interest. National security, enforcement of the criminal law and risks to human safety are also public interests.





Who makes the decision to prosecute?

• The AFP often consults the office of the CDPP before laying charges.

• The CDPP Prosecution Policy provides a two-stage test that must be satisfied before a prosecution is commenced:

o There must be sufficient evidence to prosecute the case; and

o It must be evident from the facts of the case, and all the surrounding circumstances, that the prosecution would be in the public interest.

• A small number of offences include a statutory requirement to obtain Attorney-General consent to prosecute.

o For example, the new secrecy offences in the Criminal Code.

• The Attorney-General has also issued a Direction to the CDPP which requires the CDPP to obtain the Attorney-General’s consent before prosecuting certain offences.

o This Direction reaffirms the importance of the AFP conducting exhaustive investigations to ensure the CDPP and the Attorney-General are able to make informed decisions based on all available evidence.

• Further questions in relation to the decision to prosecute should be directed to the CDPP.

Would the AFP have investigated the journalists under the new offences (EFI amendments)?

• I am not going to comment on the specifics of those investigations.

• What I will say is, there may still be instances where police need to collect information about journalists.

• I say that for 2 reasons:

1. Police may need to investigate a matter, including the activities of journalists to determine whether an offence has been committed, and regarding the activities of a journalist, if a defence to the possible commission of an offence applies

o The defence for journalists under these new offences, is not a blanket defence for journalists. For the defence to apply the journalist must have reasonably believed their conduct was in the public interest.

o Police need to collect information in order to determine those facts.

2. It may be necessary to conduct an investigation to determine the identity of the source that has made the unauthorised disclosure.





o In some instances, collecting information about a journalist will be the only way for investigators to identify the source of the disclosure, such as a Commonwealth official.

Would the AFP support maintaining records in relation to occupation types?

• No – the AFP does not support maintaining records of occupation types.

• In general occupation types are not a clear indicator of likelihood of engagement in criminal activity.

• The community expects the AFP to safeguard the privacy of individuals and the recording of occupation types may be viewed as either profiling or selectively identifying individuals.

• This has the potential to undermine the confidence of the Australian community in the AFP. There would also be a significant impost to the AFP to develop a system to accurately record, maintain and retrieve the records.

• Criminal offences do not generally distinguish criminality based on a person’s occupation. In many cases making this distinction could be inappropriate, and could invite criticism regarding the selective application of the law.

• However the AFP acknowledges that some public interests, such as the freedom of the press, are important, and is happy to consider maintaining records – if that would assist in assuring the public the AFP’s conduct is appropriate.

Would the AFP support expanding the defence to all whistle-blowers acting in the public interest?

• This is ultimately a matter for Government.

• The AFP would have concerns about the impact this would have on AFP operations and the work of our partner agencies, both domestically and offshore.

• I will reiterate the risks in releasing classified information to the public may not be obvious to the source of the unauthorized disclosure, a journalist or the public.

• So a regime that endorsed whistle-blowers taking sensitive material out of secure environments (by going straight to the media or to the public) would be very concerning to security agencies.

Would AFP support expansion of the definition of journalist in the defence?


Would AFP support expanding the journalist defence to other offences (or all offences)?

• There are many offences that journalists and media organisation need to be cognisant of when going about their work. It is a matter for Government whether





these offences should continue to apply, and whether journalists should be exempt. For example:

o Advocating terrorism/genocide/crime etc. o Offences relating to a breach of suppression or non-publication orders. o Offences against covert recording of private conversations. o Criminal defamation offences in state law. o Offences under the Broadcasting Services Act. o The new abhorrent violent material offences.

Does AFP consider unauthorised disclosure of Commonwealth information as theft?

• The application of a theft offence in the context of an alleged unauthorised disclosure of information is very dependent upon the circumstances of each individual case.

• The AFP’s role is to impartially investigate an allegation and form an initial view as to what criminality, if any, is revealed by the evidence gathered in the investigation.

• In a particular factual setting, two or more offences may have a degree of overlap, but this is not uncommon in the criminal law.

• The selection of charges is a matter for the CDPP.

o The prosecutor’s role includes careful consideration of the most appropriate charge (or charges) if the alleged conduct may involve more than one type of offence.








• Under the terms of the search warrant, AFP investigators can seize evidential material (electronic and hard copy) that is within the scope of the warrant.

• The warrants were being executed in the state of NSW and the Crimes Act 1914 (Cth) (section 3E(11)) only allows an issuing officer to issue a warrant in relation to a person or premises in another state or territory if the issuing officer is satisfied special circumstances exist.

o Our officers did not consider there were special circumstances to justify the issuing of the warrant out of State, and did not seek to have the warrant issued in the ACT.

• In this instance, our officers attended Queanbeyan Local Court in NSW and obtained the warrant from the registrar.

• Investigators contact the closest court that has an appropriate person available to issue the warrant.

If asked about the qualifications of Martin Kane

• I am not going to discuss the merits of the individual who issued these warrants. This is highly inappropriate.

How many AFP officers are/were involved?

• There were six members of the AFP involved, including three digital forensics experts.

Were the officers armed and why?

• Yes, all qualified AFP sworn members are required to wear full accoutrements (be armed) under Commissioner’s Order 3 when executing their duties.

• During this search warrant, AFP members behaved appropriately and in accordance with their responsibilities and legal obligations.

• The attendance of armed officers at the warrant should not be inferred to mean there was any threat posed at the warrant location.

• AFP members carry accoutrements because they are expected to act immediately to protect the community (and themselves) if they encounter any threat while on duty. This is the same as any other state police in Australia.

Why are journalists being targeted if you are looking for the source of the leak?

• The search warrant on 5 June 2019 was conducted in relation to the alleged theft and subsequent unlawful receipt of classified material.

o This is an extremely serious allegation and has the potential to undermine Australia’s national security.








11 July 2017

• The ABC published a seven-part report called discussing the role and activities of Australian Special Forces in Afghanistan. The articles cite “hundreds of pages of secret defence force documents”.

13 July 2017

• CDF and Acting Secretary of Defence (Sargent) referred an 11 July 2017 ABC report called ‘The Afghan Files’ and a 10 July 2017 7.30 story on ADF activities in Afghanistan to the AFP.

14 July 2017

19 July 2017

• Acting Secretary of Defence (Sargent) and CDF advised MINDEF (via noting brief) that they had referred the matter to the AFP.

• The AFP accepted the 13 July referral for investigation

July 2017 – June 2019

• The AFP conducted investigations, consulting relevant agencies and engaging persons of interest.

• On 5 September 2018, a 54-year-old male was arrested at the Sydney International Airport.

• On 18 September 2018, the male appeared before the ACT Magistrates Court and was charged with theft of Commonwealth property, contrary to section 131.1(1) of the Criminal Code Act 1995.

• On 7 March 2019, the male was subsequently fresh charged in the ACT Magistrates Court with disclosing Commonwealth information, contrary to section 70(1) of the Crimes Act 1914, and 3 counts of unlawfully giving information as to defences, contrary to section 73A(1) of the Defence Act 1903.

• On 30 May 2019, the male was committed to the ACT Supreme Court for a trial date to be determined.

• As this matter is before the court, it would be inappropriate to comment further.

24 January 2019 to 4 June 2019

• The AFP engaged the ABC and entered into negotiations in relation to requesting assistance to obtain material via the execution of a search warrant.

• On 4 June 2019, the AFP informed the ABC that it would execute a search warrant by appointment relating to the ‘Afghan Files’ story the following day (5 June 2019).





5 June 2019

• At approximately 11:15am the AFP informed the Department of Defence that the AFP would be executing a search warrant at the ABC’s Sydney offices.

• At 11.29am, Associate Secretary of Defence (Skinner) notified Secretary of Defence (Moriarty), CDF (Campbell) and VCDF (Johnston) via message that the AFP would be executing a search warrant at the ABC.

• At approximately 11.30am the AFP executed the search warrant (concluding at approximately 8:10pm). • At approximately 11.35am the AFP (Assistant

Commissioner Platz) notified Minister Dutton’s office that the ABC search warrant had been executed.

• At approximately 11.50am the AFP issued a media statement confirming that the search warrant was not linked to the 4 June 2019 search warrant executed in the ACT.

• At approximately 4.30pm the AFP issued a second statement confirming that the “Minister for Home Affairs was not notified prior to the execution of the warrants”.

24 June 2019

• On 24 June 2019 the ABC filed an application with the Federal Court challenging the validity of the warrant executed on 5 June 2019.

19 August 2019 Justice Abraham ordered that:

a) the applicant’s application for leave to amend its originating application filed on 9 August 2019 be granted;

b) the applicant’s application to add three further grounds to its originating application filed on 16 August 2019 be refused;

c) the applicant’s notice to produce be set aside; and d) the applicant’s application for discovery be refused.

2 September 2019 The ABC applied for leave to appeal the orders described at paragraphs (b) – (d) above.





18 October 2019 Justice Bromwich of the Federal Court refused the ABC application to appeal the interlocutory decision.

The substantive matter - challenging the validity of the search warrant – was heard on 28 October 2019.








Why didn’t the AFP use a journalist information warrant (JIW) in this investigation?

• The AFP uses the appropriate instrument at the appropriate time. A journalist information warrant only authorises the AFP to obtain certain metadata from a carriage service provider. This would not be the relevant warrant where investigators suspect there to be evidence located at physical premises.

o There are criminal offences for discussing the existence or otherwise of a journalist information warrant. As such, I cannot comment further.

How many AFP officers were involved?

• Seven AFP members were involved in the search warrant activity on 4 June 2019 in Kingston. This included two digital forensics members.

Were the officers armed and why?

• Yes, under Commissioner’s Order 3 all qualified sworn members are required to wear full accoutrements (be armed) when on duty.

• During this search warrant, AFP members behaved appropriately and in accordance with their responsibilities and legal obligations.

• The fact that police were armed should not be inferred to mean any threat existed at the warrant location.

• AFP members carry accoutrements because they are expected to act immediately to protect the community if they encounter any threat while on duty. This is the same as any other police in Australia.

Why did you have to be at the locations for such a long period of time? • Search warrants take time. Except in emergencies, a warrant must be executed in

one continuous period. • A search warrant involves the discovery and collection of relevant evidence in an

exhaustive, comprehensive and organised manner. • AFP officers were at each location for no-longer than was required to execute the

search warrant and conducted themselves professionally and respectfully.

Did your officers go through the journalist’s underwear draw?

• Search warrants have to be thorough when they are executed. • We understand they can be intrusive for people concerned, and my officers were

sensitive to people’s privacy and concerns, where possible. • For example, during the warrant in Kingston, only female officers conducted

searches of Ms Smethurst’s bedroom and bathroom.

What offences are being investigated with regards to the ASD disclosure?

• Official secrets – section 79(3) of the Crimes act 1914








• The matter has been listed for hearing on 12 and 13 November 2019.








• The AFP received the referral from the Department of Home Affairs (HA) on 7 February 2019 after two articles containing PROTECTED information appeared in The Australian (on the same day).

o The PROTECTED information had been contained in two Ministerial Submissions.

• The referral was assessed in accordance with the AFP’s CCPM protocols.

• During the assessment of the referral it was determined that two documents contained the information that appeared in The Australian on 7 February 2019 in an article titled Medivac Plan ‘Compromises Border Protection; - Phelps bill a security risk: ASIO.

• Both documents were Ministerial submissions. Either of these documents, or both, may have been disclosed to the journalist or another unauthorised person.

Communication between the Secretary of the Department and the AFP

• There was no communications between the AFP and the Secretary of the Department of Home Affairs or his office in relation to this matter.

• The AFP investigators made contact with the Department of Home Affairs Integrity Unit during the investigation.








and should be provided to Senator Pratt (the AFP have not been advised of the date when this occurred).

• On 29 November 2018, the AFP was invited to appear before the Committee in a closed hearing on 6 December 2018 to provide further evidence and clarification.

• The AFP considers the investigation finalised.

SENATE PRIVILEGES COMMITTEE HEARING

• On 6 December 2018, the AFP appeared before the Committee. On 21 December 2018, the Secretariat of the Committee wrote to the AFP and sought response to six Questions on Notice (QoNs) that had been taken during the Committee’s hearing, as well as two supplementary questions.

• On 14 January 2019, the AFP responded to four of these questions.

• On 8 February 2019, the AFP responded to the outstanding questions. The Committee has not yet advised when it will re-sit, or whether it will publish a second report.

• It would be inappropriate to comment further as the matter is in a closed hearing before the Committee.

What made AFP prioritise the Home Affairs au pair leak?

• This investigation has been finalised by the AFP as a result of the findings of the Senate Standing Committee of Privileges 172th Report.

• AFP received a referral from the Department of Home Affairs on 30 August 2018 and assessed this referral in accordance with the Case Categorisation and prioritisation Model (the CCPM).

The Case Categorisation Priority Model (CCPM) assessment recorded against this referral indicates the following assessments were made:

• Categorises - Unauthorised disclosure by Commonwealth Public Officials under the category of Corruption

• Impact on the Client was CRITICAL. • Investigations Priority was ESSENTIAL • Impact of the Investigation was HIGH • Value of the investigation to the AFP was HIGH

Based on this CCPM assessment the AFP decided to commence an investigation. Background on warrants from FOI & QoNs

• On 10 October 2018, AFP National Manager Crime Operations, Assistant Commissioner Debbie Platz, attempted to call the Minister for Home Affairs’ adviser and Chief of Staff. When these phone calls were not answered a text message was sent to the Minister’s Chief of Staff at 11:14am on 10 October 2018:





• “Craig. Hi. Our team are executing some search warrants today that may cause some media attention. These relate to the leak of emails relating to the au pair matter. Pls call if you would like further information. Regards Debbie.”

• For operational reasons, the AFP decided to conduct the warrant activity the following day (11 October 2018).

• On 10 October 2018 at 11:52am, AFP Deputy Commissioner Operations, Neil Gaughan, advised the Minister’s Chief of Staff of this update via text message on 10 October 2018 at 11:52am, saying:

o “That warrant activity will now be first thing tomorrow morning – Neil”

• A response was received:

o “Thanks mate – this arvo also fine”

• During a telephone conversation at 5.51pm on 10 October 2018, Assistant Commissioner Debbie Platz informed the advisor of impending search warrant activity.

• On 11 October 2018, there was email correspondence between AFP employees and the Minister for Home Affairs Office in relation to drafting of a question time brief (QTBs) on the referral from the Department of Home Affairs and the subsequent AFP investigation.

• Between the 11 October 2018 and 13 February 2019 there were number of updates to QTBs and other ministerial correspondence.








communicate ASIS information, contrary to section 11.5 of the Criminal Code and section 39 of the Intelligence Services Act 2001, and with offences relating to communicate ASIS information contrary to section 39 of the Intelligence Services Act 2001.

• A hearing in relation to the orders made under the National Security Information (Criminal and Civil Proceedings) Act 2004 is listed for 3 days commencing on 11 December 2019.

• As this matter is before the court, it would not be appropriate to comment further.

Background

• On 3 December 2013, the AFP provided assistance to ASIO in the execution of a National Security warrant on a number of premises.

• The AFP’s role was limited to the provision of security

• The matter was referred to AFP by ASIO on 13 December 2013 and an investigation commenced.

• The investigation was concluded on 18 February 2015 and a brief of evidence provided to CDPP.

• CDPP obtained AG consent to prosecute on 11 May 2018.

• This matter was heard in the ACT Supreme Court on 6 August 2019.

• Witness K pleaded guilty to Conspiracy to communicate ASIS information (section 11.5 Criminal Code and section 39 of the Intelligence Services Act 2001).

• His lawyer, Mr Bernard Collaery pleaded not guilty to Communicate ASIS information (section 11.5 Criminal Code, section 39 of the Intelligence Services Act 2001).

Action by departments and agencies

• The AFP only accepts referrals from departments and agencies when there are allegations of criminal conduct.

• Departments and agencies may conduct their own initial inquiries to determine the scope of the allegations as well as the harm involved.

• Departments and agencies do not exercise police powers to investigate.

FOI - CRM 2020/356 Folio - 42




FOI - CRM 2020/356 Folio - 43










o This includes authorisation to “add, copy, delete or alter data” for very limited purposes.

• There is a very sound best practice digital forensics reason for this.

o Processes for accessing electronic devices necessarily result in technical alterations to the data held in the device.

o Essentially, just by accessing a phone or computer, our investigators are changing the metadata behind it.

o In order to preserve the integrity of electronic evidence, digital forensics officers need to be able to delete the data that is added by their own actions.

• “Adding” data – E.g. additions to logs on the computer that automatically occur whenever the computer is being used by the investigator or digital forensics officer.

• “Copying” data – E.g. replicating data from the internal storage of a computer to a USB to enable it to be seized.

• “Deleting” data – E.g. overwriting data in the computer’s memory when installing forensic software to search the computer for relevant data.

• “Altering” data – E.g. Any of the above.

FOI - CRM 2020/356 Folio - 46







Would the AFP support expanding the defence to all whistle-blowers acting in the public interest?


• The AFP would have concerns about the impact this would have on AFP operations and the work of our partner agencies, both domestically and offshore.

• I will reiterate that the risks in releasing classified information to the public may not be obvious to an individual Commonwealth official or the public.

• So a regime that endorsed whistle-blowers taking sensitive material out of secure environments (by going straight to the media or to the public) would be very concerning to security agencies.

FOI - CRM 2020/356 Folio - 48







• I am conscious this is a public forum and there are criminal offences in the Telecommunications (Interception & Access Act) 1979 (section 181A) for disclosing the existence or otherwise of a journalist information warrant.

• As the Committee is aware, the AFP has statutory obligations to report to Parliament on the use of JIWs.

o As reported recently to the Parliamentary Joint Committee on Intelligence and Security, the AFP has had 2 JIWs issued in the 2017-18 financial year.

o IF ASKED: There are limitations on what I can say further in a public forum.

Would the AFP support a journalist public interest advocate (PIA) being expanded to all police powers?


• The AFP notes this would have the operational impact on investigations:

o Requirement to use a PIA would delay the issuing or warrants by up to a week.

• In some instances, a delay will risk evidence being lost, or in the worst case scenario- harm to individuals or continued offending (including where the investigation may be targeting offences other than leaks).

o Inability for AFP to investigate offences that have been passed by Parliament

• Including offences by Cth officials.

• It would be preferable to deal with the issue through the offences themselves, not the investigative powers.

Would AFP support expansion of the definition of journalist in the defence?


Would AFP support expanding the journalist defence to other offences (or all offences)?

• There are many offences that journalists and media organisation need to be cognisant of when going about their work. It is a matter for Government whether these offences should continue to apply, and whether journalists should be exempt. For example:

o Advocating terrorism/genocide/crime etc. o Offences relating to a breach of suppression or non-publication orders. o Offences against covert recording of private conversations. o Criminal defamation offences in state law. o Offences under the Broadcasting Services Act.

FOI - CRM 2020/356 Folio - 50




o The new abhorrent violent material offences. E.g. publication of the Christchurch attack on a public website.

Surveillance warrants

• In relation to those unauthorised disclosure investigations since 2013 the AFP has not located any record of having applied for, or obtaining, any surveillance device warrants in relation to a journalist.

• The AFP retains records in the terms required by law, which do not include a person’s occupation. Accordingly, the AFP does not keep specific records for occupation type in relation to surveillance device warrants. Therefore, the AFP cannot provide a specific figure in relation to how many surveillance device warrants have been obtained ‘in relation to a journalist’ across all crime types.

Self-Reporting to Ombudsman

• In 2017, the AFP self-reported an instance where a JIW was not sought as required. This incident was previously reported to the PJCIS. See their 16/17 Annual Report which states:

• 1.70 The AFP also responded to questions from the Committee about a breach of the Telecommunications (Interception and Access) Act 1979 that was self-reported to the Commonwealth Ombudsman in April 2017. The breach involved an AFP member accessing telecommunications data pertaining to a journalist without a Journalist Information Warrant being issued.18 former Commissioner Andrew Colvin outlined for the Committee that, in response to the breach, the AFP had put in place additional training, updated forms, and limited the officers authorised to approve access to this type of telecommunications data to members of the Senior Executive Service.

JIW and if we don’t comply. Subsection 180H(2) states as follows: (2) An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person if (a) the authorised officer knows or reasonably believes that particular person to be:

(i) a person who is working in a professional capacity as a journalist; or

(ii) an employer of such a person; and

• (b) a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source.

FOI - CRM 2020/356 Folio - 51




Why hasn’t the AFP been consistent in its approach to revealing information about the media search warrants?

• The high level of public interest in the SMETHURST and ABC investigations, together with the publicity surrounding the current civil proceedings, mean there is more information in the public domain in respect of those investigations than would typically be revealed. That said, both those investigations are ongoing, are subject to ongoing civil litigation, and with respect to the ABC matter, criminal proceedings. It would not be appropriate to comment further on these two active investigations.

• The AFP has publically stated that a JIW was not sought in relation to those investigations. The AFP’s view is that this was appropriate given the high level of public interest in those matters, and the need for public confidence in the enforcement of the criminal law.

In relation to all warrants on any journalist:

• The AFP don’t keep records of warrants by occupation.

FOI - CRM 2020/356 Folio - 52







• The AFP is subject to the FOI Act, despite sharing intelligence and national security functions with agencies otherwise exempt from the Act.

• The FOI Act provides for exemption of sensitive information where release is not in the public interest. This includes:

o National security

o Ongoing investigations

o Law enforcement methodology

FOI - CRM 2020/356 Folio - 54







o “It is beyond the scope of this Review to consider the impact of national security legislation on journalists.”

AFP submissions to the PJCIS AND SSCEC

• In the AFP’s public submission to the PJCIS Press Freedom inquiry, the AFP ask the Committee to consider the effectiveness of the PID regime in terms of its interaction with the issues raised by unauthorised disclosures to the media.

o The AFP did not include this in the SSCEC submission because “whistle-blower protection regimes” was already an explicit term of reference of the SSCEC inquiry.

Evidence and Media Organisations SSCEC

• ABC has claimed that the Commonwealth officials in recent cases all exhausted official avenues before whistle-blowing to the media.

o For example, Mr Gavin Morris (ABC) at SSCEC hearing: “we were not the first port of call for these public servants stepping forward. On every occasion I can think of they have usually gone through all of the steps that are allowed and afforded them… and we are usually the last resort.”

o The AFP is unable to confirm this as the investigation relating to the ABC is before the court and the investigation relating to Ms Smethurst is an ongoing investigation.

• Media organisations have called for PID laws to provide protection for whistle-blowers that disclose to the media.

FOI - CRM 2020/356 Folio - 56







• The 2019 Ministerial Direction complements (does not revoke) the broader Ministerial Direction issued by the former Minister for Justice, the Hon Michael Keenan MP on 12 May 2014.

Has the AFP commenced work on implementing the Direction?

• The AFP National Guideline has been developed on investigations of unauthorised disclosure of material made or obtained by a current or former Commonwealth officer. This National Guideline was published on the AFP’s Governance Instrument Framework on 18 September 2019 and gives effect to the Ministerial Direction.

How does the Ministerial Direction and National Guideline impact on the AFP’s investigations?

• The AFP has implemented a stronger framework for unauthorised disclosure referrals, including an explicit requirement that referring departments and agencies provide a harms statement.

• The AFP will exhaust all alternative investigative actions before considering investigative action involving a journalist.

• This will give the AFP clarity around the impact of its investigative actions. It will include seeking voluntary assistance from journalists wherever possible.

Will the Direction apply to the ABC and Smethurst investigations?

• Yes – Following the issue of the Direction on 8 August 2019, the AFP reviewed all of the matters currently at hand and sought an additional harm statement from referring parties.

Timeline of AFP consultation on the Ministerial Direction

Under section 37 (2) of the AFP Act, a Ministerial Direction may only be issued after obtaining and considering the advice of the AFP Commissioner:

FOI - CRM 2020/356 Folio - 58










of Parliament.

SENATE PRIVILEGES COMMITTEE INQUIRIES

• Recent Senate Privileges Committee inquiries have examined the scope and operation of the AFP National Guideline on the Execution of Search Warrants where Parliamentary Privilege may be involved. Those inquiries have recommended that the AFP National Guideline should be updated and its operation extended.

• The new protocols recommended by the Senate Committee in the recent Reports have not yet been drafted or agreed. The Government is still finalising a response to the recommendations of both reports.

• The AFP is ready to work with Home Affairs (as the relevant portfolio agency) to implement the Government’s position, including finalising the Government response to the Senate Committee Reports and, during negotiations with Parliament on the new Protocol.

164TH AND 168TH REPORT: NBN SEARCH WARRANTS AND USE OF INTRUSIVE POWERS

• In its 164th Report of March 2017, the Senate Committee of Privileges expressed concern about the AFP’s compliance with the agreed terms of the National Guideline. The Committee recommended a further inquiry be held to examine its adequacy and coverage.

• In the 168th report of March 2018, the Senate Committee of Privileges inquired into the implications of the use of intrusive powers by law enforcement and intelligence agencies (including telecommunications interception, electronic surveillance and metadata domestic preservation notices) on the privileges and immunities of Members of Parliament.

• The Committee determined that because there was a ‘chilling effect’ if communications between Members of Parliament and other parties were (even covertly) intercepted by enforcement agencies, the Presiding Officers, in consultation with the Executive, should develop additional protocols that will set out agreed processes to be followed by law enforcement and intelligence agencies when exercising those powers.

172nd AND 174th REPORT: HOME AFFAIRS E-MAIL LEAK AND SEARCH WARRANTS • In its 172nd Report of November 2018, the Senate Committee of Privileges

examined the AFP’s execution of a search warrant in respect of ABF offices in Canberra, during which a claim of Parliamentary Privilege was made by Senator Louise Pratt over material in that office.

FOI - CRM 2020/356 Folio - 61




• The Committee applied the test for parliamentary privilege that it had developed in the 164th Inquiry, and on this basis, was satisfied the material was privileged and the claim was upheld. The Committee recommended the seized material be provided to Senator Pratt.

• The Committee expressed concern about whether the purposes of the National Guideline were met in the execution of the search warrants. The Committee recommended a further inquiry be held to examine its adequacy and coverage.

• In the 174th Report of April 2019, the Senate Committee of Privileges examined the AFP’s conduct more closely, and expressed the view that the National Guideline had ‘failed in its stated purpose’. The Committee confirmed its view that the National Guideline should be amended, and proposed several changes to its operation, such as having the Commissioner personally approve any search warrant where matters of privilege may be involved.

FOI - CRM 2020/356 Folio - 62







Opening statement

Introduction

• Good afternoon Chair and Committee members. Thank you for the opportunity to make a brief opening statement.

• I have taken up the role of AFP Commissioner during a challenging time for the AFP. There is significant focus on the interactions between police and the media, the relationship between police and Government, and the tension between national security and the public’s right to know.

• I am committed to providing this Committee with as much information as possible to enable the Committee to conduct a thorough review of these issues.

o Obviously, there are some limitations on the information that I can provide due to current and ongoing investigations, including matters that are currently before the courts.

• As I have previously stated in a number of forums, I am focused on ensuring the AFP is the best performing police force we can possibly be.

o I have commissioned a number of organisational reviews to improve the AFP’s operational model and review our response to, and management of, sensitive investigations.

Transparency and accountability

• Chair, as you are aware, I personally wrote to you on 21 October 2019 to share with you the terms of reference of the AFPs review into sensitive investigations.

o I have commissioned Mr John Lawler, AM APM to review AFP processes around sensitive investigations, including investigations into unauthorised disclosures.

o The review will take a holistic approach so that I can make an informed decision on what changes may be necessary or useful to ensure the AFP has investigative policy and guidelines in place that are fit for purpose.

FOI - CRM 2020/356 Folio - 64




o The outcomes of the review will be publically available and I will ensure that we provide a copy to this Committee once finalised.

• During my term as Commissioner, I am committed to improving the transparency of the AFP and to build a positive relationship with media organisations and the press.

o Yesterday I met with the Managing Director of the ABC, David Anderson, the Executive Chairman of Newscorp Australasia Michael Millar and the Chief Executive of Nine, Hugh Marks to better understand Press Freedom, and to identify ways that we can work better together.

o This meeting was positive and reaffirmed that the AFP has held an ongoing, long-term, positive relationship with the media. I recognise that 2019 has seen a regression in this relationship and I am committed to turning this around.

o During our discussion, my counterparts were forthright in their position that we must work together to reach constructive and flexible models that are fit for purpose and I support this position.

o I have asked members of my team to consider how we can sit down with journalists to talk through how we operate, where we can improve, how and when we engage, and how best journalists can engage with us.

o To ensure momentum is not lost, I have also committed to meet with my executive media counterparts again in early 2020 to continue our conversations and I have determined to make this a regular occurrence into the future.

o On the 22nd of November, I will also meet with a number of members of the Press Gallery to discuss my approach to media engagement with a focus on transparency and accountability. I think it is important that they have an opportunity to speak to me directly about their views.

Independence

• Under section 37(2) of the Australian Federal Police Act 1979, the Minister may obtain any considerations on the advice of the Commissioner and can issue a Ministerial Direction.

FOI - CRM 2020/356 Folio - 65




• The Minister may also give written directions to the AFP which I am obligated by legislation to comply with.

• As this Committee is aware, on 8 August 2019, the Minister for Home Affairs issued a Ministerial Direction to the AFP specifically on the topic of Press Freedom.

• The Ministerial Direction outlines the Government’s expectations for the AFP in relation to investigative action involving a professional journalist or news media organisation in the context of unauthorised disclosure material made or obtained by a current or former Commonwealth officer.

• As outlined in the Ministerial direction, the key function of the AFP is, and must remain, the enforcement of the criminal law, without exception.

• I acknowledge that the Ministerial Direction sets out a clear expectation that the AFP will take into account the importance of free press and broader public interest implications before undertaking any investigative action involving a journalist or media organisation.

• Consistent with operational imperatives, my teams consider all investigation actions available to them, prior to determining if action involving a professional journalist or news media organisation is required.

• Where possible, the AFP will continue to seek voluntary assistance from professional journalists or news media organisations.

• On that basis, the AFP has implemented a stronger framework in support of the Ministerial Direction by finalising an internal National Guideline on investigations of unauthorised disclosure of material made or obtained by a current of former Commonwealth officer.

• The referral process outlined in the National Guideline includes a requirement that the head of the referring department or agency provides a harm statement indicating where the disclosure of the material would be expected to compromise Australia’s national security, national interests or cause other significant harm.

• As part of evaluating the referral the evaluation must also take into account the following three matters:

FOI - CRM 2020/356 Folio - 66




o firstly, whether, on balance, the public interest in the importance of a free and open press in Australia’s democratic society is outweighed by the public interest in the enforcement of the criminal law by the AFP;

o second, if a criminal investigation was to proceed, the way in which the AFP would seek to proceed with an investigation and the extent to which that investigation would likely involve investigative action involving a professional journalist or news media organisation; and

o finally, any defences available to any party that may be subject to the investigation.

• I am also aware the Attorney-General has issued a Direction to the Commonwealth Director of Public Prosecutions, requiring his consent before commencing a prosecution for certain offences.

• This Direction reaffirms the importance of the AFP thoroughly investigating these matters and collecting all relevant information and evidence to ensure the CDPP, and where relevant the Attorney-General, can make a fully informed decision.

• As police, we target criminality – which is determined by the laws created by Parliament, and based on our investigation to establish facts and evidence.

• I want to reassure the Committee, media groups and the public that we understand the magnitude and nature of any interaction between police and a journalist. Contrary to some of the commentary, unauthorised disclosure investigations are not taken lightly and involve serious and careful consideration of all of the surrounding circumstances.

• Powers used to obtain information are controlled by robust legislative schemes, and are subject to regular and independent review and oversight. As I mentioned earlier, Mr John Lawler is looking into our processes and governance around these types of investigations.

Court proceedings

• As this committee is aware, the validity of the warrants in relation to the ABC investigation were recently challenged in the Federal

FOI - CRM 2020/356 Folio - 67




court on 28 and 29 October 2019. We are still waiting for the findings to be delivered.

• Likewise with the News Corp investigation, this matter was heard before the High Court on 12 and 13 November 2019. As you would be aware, the High Court adjourned the matter and we await further advice.

• I do not want to comment any further on the specifics of these matters before court as I do not want to pre-empt or prejudice any findings.

Conclusion

• Chair, I now welcome any questions you may have.

FOI - CRM 2020/356 Folio - 68







Table of contents Table of contents ................................................................................................................... 2

Introduction .......................................................................................................................... 3

Warrant regimes in relation to journalists and media organisations .............................................. 3

Whistleblower protections ....................................................................................................... 6

Referral practices .................................................................................................................. 7

Integrity framework ............................................................................................................... 7

Independence of police .......................................................................................................... 8

FOI - CRM 2020/356 Folio - 70




Introduction The Australian Federal Police (AFP) welcomes the opportunity to make a submission to the Environment and Communications References Committee (‘the Committee’) Inquiry into press freedom. This submission addresses the terms of reference for this Inquiry, which are:

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;

b. the whistleblower protection regime and protections for public sector employees;

c. the adequacy of referral practices of the Australian Government in relation to

leaks of sensitive and classified information;

d. appropriate culture, practice and leadership for Government and senior public

employees;

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; and

f. any related matters.

2. The AFP is an operational policing agency, and this submission is naturally directed towards providing the Committee with insight into the operational policing considerations that arise from the Committee’s terms of reference.

Warrant regimes in relation to journalists and media organisations TERM 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.

The role of a criminal investigation

3. Both police independence and freedom of the press are fundamental pillars of democracy. The operational independence of police is vital to ensuring that no individual member of society and no class of individual is above the law. Freedom of the press plays an important role in keeping the public informed and our democratically elected officials and Government institutions accountable. These concepts are not inherently in conflict.

4. Like all members of the public, companies, government agencies and elected officials, a journalist or media organisation may become of interest in a criminal investigation. The journalist or media organisation may be of interest either as a suspect or as a third party in possession of information relevant to an investigation. These two categories are not mutually exclusive, and persons may be of interest as both a suspect and a holder of information relevant to an investigation. Decisions about who to charge are not made until information has been collected through the investigation process.

5. It is important to draw a distinction between a police investigation and a criminal prosecution. The exercise of investigation powers by police is an information collection process, and not a punitive measure. It is normal for police powers to be exercised at a point in time when the full scope and impact of the criminal offending is unknown. In the example of journalist disclosure of classified information, it is not possible to establish this purely from the contents of the document that has been published. Other facts, including the source of the information, the way it was handled before

FOI - CRM 2020/356 Folio - 71




publication, and the intentions of the people involved are all relevant. An informed decision about whether to prosecute cannot be made until the facts of a case are known, both inculpatory and exculpatory.

6. The investigation process enables there to be an assessment of the full facts of the unauthorised disclosure, including the intentions of the persons involved, and potential consequences of the use or disclosure as outlined above. Government principles around ownership of documents means that agencies other than police may engage with journalists and/or media organisations where their information has been leaked, to facilitate recovery.

7. Before proceeding with a prosecution, the Commonwealth Director of Public Prosecutions (CDPP) must be satisfied from the facts of the case that the prosecution is in the public interest.1 For certain offences, the Attorney-General’s consent is also

required before a prosecution may commence. The policy and legislative frameworks underpinning these decisions require the CDPP and Attorney-General (as relevant) to be informed of the facts revealed through the police investigation.

The legislative framework governing information and evidence collection in an investigation

8. The AFP utilises a range of approaches to collect information relevant to an investigation. This may include requesting information from individuals or entities on a voluntary basis. The Privacy Act 1988 (Cth) includes specific exemptions for law enforcement activity for this purpose. Typical police powers for collecting evidence include search warrants, forensic procedures and electronic surveillance. These powers are not always directed at a suspect, but must still relate to the investigation of an offence. Courts have wide ranging discretion to exclude any evidence in a prosecution that has been improperly or unlawfully obtained.

9. Throughout an investigation, AFP investigators must be satisfied that each investigative decision and use of power is lawful, reasonable, necessary, fair and proportionate.2 Public interest is actively considered at all stages of the investigation. One factor that may be applicable to decision making is the intentions of the person whose conduct is under investigation, for example, journalists. This is balanced against other considerations such as the protection of national security and the need to give effect to Parliament’s intention in passing legislation regarding criminal offences.

10. Where appropriate, the AFP exercises intrusive powers (for example search warrants under section 3E of the Crimes Act 1914 (Cth)) in a cooperative manner. This may include negotiating the timing of the warrant with the representatives of the entity. The ability to take a cooperative approach will depend on the nature of the investigation and the extent to which advanced notice of the warrant risks the destruction of evidence or alerting a suspect of investigative activity. Regardless of the approach taken in the lead up to the execution of a section 3E warrant, the search itself must be executed overtly.

11. Powers that involve intrusive collection of information are appropriately governed through legislation. The legislative thresholds, approval processes and safeguards for such powers vary depending on the sensitivity of the information and method of collection. Some of these safeguards are specifically directed towards protecting the public interest in media reporting. For example, police are required to obtain judicial authorisation before obtaining telecommunications data from a carriage service provider for the purpose of identifying a journalist’s source. This legislative process

involves mandatory public interest considerations and a Public Interest Advocate.3

1 Prosecution Policy of the Commonwealth, page 5. 2 AFP Investigations Doctrine. 3 Telecommunications (Interception and Access) Act 1979, Division 4C.

FOI - CRM 2020/356 Folio - 72




Furthermore, the AFP is subject to the Commonwealth Ombudsman’s oversight of

covert and intrusive powers to ensure compliance with the legislation.

12. A number of interested parties, including media organisation, have commented that there should be contested hearings before a warrant relating to a journalist can be issued. Covert warrants are a key aspect of most investigations into serious offences. They enable police to collect information without alerting suspects, risking the destruction of evidence or providing an opportunity to employ counter-surveillance. Any form of contested hearing in relation to covert powers would fundamentally undermine their effectiveness, and the ability of police to conduct an investigation.

13. Search warrants under section 3E of the Crimes Act 1914 (Cth) are often the first point at which the investigation becomes overt, or public. However, it is often very important to the integrity of an investigation that persons of interest are not made aware of the investigation until such time as the warrant is executed. An opportunity to make representations or submissions at the time of issuance would undermine investigations by alerting suspects and providing opportunities to destroy evidence.

14. There are a number of avenues open to individuals to contest police powers through the Courts after a decision has been made to issue a warrant:

During the execution of a search warrant, an affected person may apply for an urgent injunction to halt the warrant activity;

Judicial review of the lawfulness of decisions, either at common law or through the process outlined in the Administrative Decisions (Judicial Review) Act 1977;

Litigation for damages on the basis of tort law, including negligence (which generally requires the conduct to have been unlawful);

Claims of parliamentary privilege or legal professional privilege over documents seized at the search warrant;

High Court challenges in relation to constitutional validity; and

The ability of a Defendant in a criminal prosecution to object to evidence that has been improperly or illegally obtained.

15. Decisions about the legislative procedures and thresholds for the exercise of police powers are ultimately for Parliament to determine. However, prohibitions or restrictions on the use of investigation powers over specific classes of individuals such as journalists may have an operational impact on:

The ability of police to ascertain the full facts of a case, including information that may support a journalist defence;

The ability of the Attorney-General and CDPP to make informed decisions about the public interest in prosecuting;

The ability of police to collect evidence as part of an investigation into Commonwealth officials that may be guilty of the initial unauthorised disclosure; and

The ability of police and national security partners to fully assess the consequences of an unauthorised disclosure.

Unauthorised disclosure offences and defences

16. One way to minimise these impacts is to provide protections in the form of offence-specific defences, as achieved through the National Security Legislation

FOI - CRM 2020/356 Folio - 73




Amendment (Espionage and Foreign Interference) Act 2018 (the EFI Act 2018). These defences were drafted specifically with the intention of balancing the need to protect freedom of speech and the importance of ensuring harmful information is not released.4 The legislative framework introduced by the EFI Act 2018 is yet to be tested by the courts through a criminal prosecution.

17. Defences to unauthorised disclosure offences need to be carefully framed to ensure there is an appropriate balance between press freedom and other public interest considerations such as national security and human safety.

18. Like many Government agencies, the AFP relies on protection of sensitive information, the release of which could have an adverse impact on the Australian public, Australia’s

sovereign interests, the interests of Australia’s strategic partners, and the personal safety of individuals involved in operations. Compliance with the Protective Security Policy Framework (‘PSPF’) is paramount to this.

19. Unauthorised use and disclosure of classified information can have adverse, even catastrophic, consequences, including:

Revealing sensitive capabilities and methodologies relied on by the AFP and its partner agencies, the exposure of which may undermine the effectiveness of operations, and put persons utilising those methodologies at risk;

Exposing the identity of undercover officers and informants, thereby putting their personal safety at risk; and

Reducing the willingness of foreign partners to provide Australian agencies with information that may assist them to protect Australia’s interests and national

security, including preventing terrorist attacks in Australia.

20. The risks of unauthorised disclosure may continue to apply after the conclusion of an operation and may not be evident to journalists or the wider public. A document does not need to be published in full or part for these risks to materialise. Storing classified documents in an unsecure way, contrary to the PSPF, creates a risk of the information being accessed by nefarious third parties, including foreign actors.

Whistleblower protections TERM OF REFERENCE B: The whistleblower protection regime and protections for

public sector employees.

21. If a Commonwealth official is concerned about wrongdoing and maladministration in the Commonwealth public sector there are lawful and secure means of raising those concerns. The Public Interest Disclosure (PID) regime authorises disclosure to the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security in appropriate circumstances. Importantly, disclosure through the PID regime enables the aforementioned risks to national security, operations and human safety to be managed.

22. The AFP is not making a comment on the effectiveness of the PID regime as this is a matter of policy. The Attorney General’s Department has primary responsibility for

providing policy advice to Government on the PID regime.

4 National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, Revised Explanatory Memorandum, para 11.

FOI - CRM 2020/356 Folio - 74




Referral practices TERM OF REFERENCE C: The adequacy of referral practices of the Australian

Government in relation to leaks of sensitive and classified information.

23. The AFP evaluates and prioritises all allegations of criminal wrongdoing objectively at the organisational level and in accordance with a clear organisational policy called the Case Categorisation and Prioritisation Model (CCPM). Some of the factors that are taken into account through the CCPM include:

The impact of the alleged offending on Australian society;

The likelihood of success in an investigation; and

Whether an alternative to criminal investigation is appropriate.

24. These are all applied as objective measures. The CCPM has been applied to all referrals of alleged unauthorised disclosures of classified information. In some instances, application of the CCPM has resulted in a decision not to investigate allegations of unauthorised disclosures in the media.

Integrity framework TERM OF REFERENCE D: Appropriate culture, practice and leadership for Government

and senior public employees

25. The AFP has a strong professional standards and values framework, which must be complied with by all AFP appointees.

26. Part V of the Australian Federal Police Act 1979 (Cth) (AFP Act) establishes the AFP’s

Professional Standards regime and provides a strong foundation for the AFP’s corruption

resilience. The AFP’s Professional Standards (PRS) unit has responsibility for the development and maintenance of the AFP’s integrity framework.

27. The AFP Commissioner’s Order on Professional Standards (CO2) gives effect to the relevant provisions of Part V of the AFP Act by:

Setting the professionals standards of the AFP to maintain the good order and discipline of the organisation

Outlining the AFP complaint management methodology and processes in accordance with Part V of the Act, including the roles of AFP appointees, PRS and the Professional Standards Panel.

28. Upholding the AFP’s professional standards, including the Core Values and Code of

Conduct is the responsibility of every AFP appointee. This includes the requirement to comply with AFP governance mandatory compliance requirements within AFP governance instruments.

29. In addition, the AFP is subject to the oversight of a number of key bodies, including the Australian Commission for Law Enforcement Integrity, the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security. This complements the scrutiny of parliamentary oversight bodies.

30. We welcome the scrutiny of these bodies, while also working with government to ensure that these various oversight mechanisms remain complementary, rather than duplicative.

FOI - CRM 2020/356 Folio - 75




Independence of police TERM OF REFERENCE 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.

31. As the Commonwealth’s primary law enforcement agency, the AFP is responsible for the

investigation and prevention of Commonwealth offences, as passed by Parliament. The AFP fulfils this responsibility with operational independence and political impartiality at all times.

32. The Minister for Home Affairs is lawfully permitted to provide written directions to the AFP in terms of the ‘general policy to be pursued’ in fulfilling its functions.5 However, the AFP is not, and cannot legally be, directed by the Government or an individual Minister or Department to exercise, or abstain from exercising, police powers in an individual investigation. On 8 August 2018, the Minister for Home Affairs issued a ministerial direction in relation to press freedom (attachment A). The AFP welcomes the new ministerial direction, which will assist the AFP to find the appropriate balance between press freedom and other public interest considerations, including national security and human safety.

33. The AFP’s standard practice is to notify the Minister for Home Affairs when politically

sensitive matters are referred to the AFP unless there is a conflict of interest or potential for perceived conflict of interest. This is done in accordance with the AFP National Guideline on Politically Sensitive Investigations (attachment B). The AFP also notifies the Minister for Home Affairs’ Office of significant, overt operational activity.

Permission to commence an investigation or undertake operational activity is not sought. Nor does the AFP provide regular updates to the Minister for Home Affairs on operational activity.

34. As stated above, the AFP evaluates and prioritises all referrals independently of Government and in accordance with a clear organisational policy called the Case Categorisation and Prioritisation Model (CCPM).

35. The AFP is one of the most thoroughly oversighted agencies in the Commonwealth including by the:

The Commonwealth Ombudsman;

The Australian Commission for Law Enforcement Integrity;

The Parliamentary Joint Committee on Intelligence and Security;

The Parliamentary Joint Committee on Law Enforcement;

The Senate Standing Committees on Legal and Constitutional Affairs; and

The AFP’s internal Professional Standards Unit.

Most significantly, the AFP’s use of powers is tested whenever evidence derived from

those powers is adduced in court.

5 Australian Federal Police Act 1979 (Cth), section 37(2).

FOI - CRM 2020/356 Folio - 76




FOI - CRM 2020/356 Folio - 77




FOI - CRM 2020/356 Folio - 78




FOI - CRM 2020/356 Folio - 79




Existing legal protections & safeguards for journalists

Journalist privilege

• Statutory ‘journalist privilege’ applies to court proceedings in NSW, Victoria, WA, ACT, and the Federal Court.

o Does not apply at the investigation stage, only during court proceedings.

o Enables journalists to refuse to give information that would identify a confidential source.

o E.g. section 126K of the Evidence Act 1995.

• The Evidence Act also includes a general provision enabling a court to exclude evidence where the public interest in maintaining confidentiality outweighs the public interest in admitting the evidence (s.130)

General

• Some Cth secrecy offences include defences/exemptions for previously published information, disclosures to police, reporting to oversight bodies.

Journalist defence for secrecy offences

(Division 122 of the Criminal Code – section 122.5)

• This defence only applies to the offences in Division 122 of the Criminal Code.

o It does not apply to theft of Commonwealth property for example.

• This defence only applies where: o The disclosure, use, possession etc. was made in the defendant’s

capacity as a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media, and

o The [journalist] reasonably believed it was in the public interest.

• Division 122 also includes defences for: o Disclosing information that has already been made public with the

authority of the Commonwealth. o Disclosing information to an integrity agency, or reporting it to police

because it relates to a crime. o Disclosing the information under the Public Interest Disclosure regime.

FOI - CRM 2020/356 Folio - 80




Journalist information warrants (JIWs)

(Division 4C of the TIA Act)

• Introduced in 2015 during the data retention amendments.

• For most matters, access to telecommunications data is internally authorised. However, for matters relating to journalists and their sources, a JIW must be obtained before the authorisation to access the data. A JIW is issued by a judge or AAT member.

o The issuing authority must be satisfied that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the source.

One consideration is whether the information could be obtained by other means.

o The issuing authority must consider any submission by the Public Interest Advocate.

Controlled operations – secrecy offences

• Section 15HK Crimes Act 1914

• In 2018, the controlled operation secrecy offences were separated out into offences for ‘insiders’ and ‘outsiders’.

o For outsiders, including journalists, the prosecution must prove that disclosure would endanger a person or prejudice an operation.

Agricultural protection Act 2019

• Introduced two new offences in relation to the incitement of trespass or property offences on agricultural land. Included an exemption for public interest disclosures by professional journalists.

o This Bill was introduced to Parliament one month after the ABC and News Corp warrants.

Declared area offence

• Division 119 of the Criminal Code

• The declared area offence includes an exemption for persons who travel to a declared are solely for the purpose of making a news report of events in the area where the person is working (or a assisting a person) in their capacity as a professional journalist.

FOI - CRM 2020/356 Folio - 81




FOI - CRM 2020/356 Folio - 82




Abhorrent violent material offences

• Division 474 of the Criminal Code

• The offences for failing to remove abhorrent violent material include a defence where the material relates to a news report or a current affairs report that is in the public interest and made by a person in their professional capacity as a journalist

Treason, advocating terrorism/genocide

• The offences of treason, advocating terrorism, and advocating terrorism in Part 5.1 of the Criminal Code include a defence for acts done in “good faith” (section 80.3)

o The Court is permitted to consider whether the acts were done “in the dissemination of news or current affairs”.

FOI - CRM 2020/356 Folio - 83













FOI - CRM 2020/356 Folio - 87










Consolidation of AFP QoNs

PJCIS Press Freedom inquiry

News Corp / Smethurst / ASD investigation / Operation WOOLF

AFP1: What evidence was there of harm? (PJCIS 21.1 p.4; PJCIS sub21.2 Q9-10)

A: The Secretary of Defence did not provide information on the potential harm in the referral on 30 April 2018 in relation to News Corp reporting.

The Australian Signals Directorate provided the AFP with information on actual and potential harm in relation to the unauthorised disclosure.

AFP2: Did the same forensics officers attend both the News Corp and ABC warrants? (PJCIS Sub21.1 p.7)

A: The search warrants executed at Ms Annika Smethurst and the ABC’s premises were attended by different AFP digital forensic team members.

AFP3: What is the total cost to the taxpayer associated with this investigation? (PJCIS Sub21.1 p.11)

A: As at 6 August 2019, the total estimated cost of the investigations were:

- Investigation into the ASD disclosure: $134 900

These figures do not include ongoing legal costs in relation to the Federal Court of Australia and High Court of Australia proceedings.

AFP4: When did the AFP make the decision to launch a full investigation into the News Corp matter? (PJCIS Sub21.2 Q6)

A: The AFP made a decision to commence an investigation into this matter on 8 May 2018.

AFP5: Did the AFP obtain a journalist information warrant for the Smethurst investigation?

(PJCIS Sub21.2 Q8b)

A: No journalist information warrants were obtained in relation to this investigation. Under section 185D of the Telecommunications (Interception and Access) Act 1979 a copy of any journalist information warrant issued to the AFP must be given to this Committee as soon as practicable.

FOI - CRM 2020/356 Folio - 90




AFP6: What factors did the AFP consider at the outset of this investigation? Why did AFP decide it was in the public interest to investigate? (PJCIS Sub21.2 Q11)

A: The AFP evaluates and prioritises all allegations of criminal wrongdoing objectively at the organisational level in accordance with an established evaluation process. This determines whether the AFP will:

- investigate - refer the matter to a partner agency and, if so, whether AFP will collaborate in a joint

investigation - record it as a criminal matter without investigation due to:

o the level of criminality o allocation of resources to higher priority matters o likelihood of successful prosecution o not in the public interest

- reject the matter

The Case Categorisation and Prioritisation Model (CCPM) is also applied during the evaluation of a referral. The CCPM describes the essential characteristics of operational matters that affect the referral and selection process. The factors that are taken into account in the CCPM assessment include:

- Resources - The impact of the alleged offending on Australian society - The likelihood of success in an investigation - Whether an alternative to criminal investigation is appropriate - The impact of the alleged offending on Australian society - Whether an alternative to criminal investigation is appropriate

A CCPM rating is completed at the time of referral and is also revised when any aspect of the matter changes significantly.

AFP7: Explain why the CCPM for this referral was amended. (PJCIS Sub21.5 Q15-17)

A: The original classification, of ‘other Commonwealth crime’, was entered in error on 3 May 2018. Upon review by an AFP team leader the correct classification of ‘corruption’ was entered on 7 May 2018, consistent with the AFP’s Case Categorisation and Prioritisation Model (CCPM). The outcome of each criteria is pre-determined by the CCPM. For example, once a crime type is entered the criteria are automatically filled by the system. As such, once the error in crime type was corrected the other values were automatically amended

AFP8: How many potential suspects did the AFP identify at the outset of its investigation? (PJCIS Sub21.2 Q13)

A: The AFP is not able to comment on sensitive aspects of investigations that have been, are being, or are being proposed to be undertaken by the AFP. Such sensitivities include the use of statutory powers and the extent to which such powers may be used, or not used, in relation to those persons under investigation.

FOI - CRM 2020/356 Folio - 91




AFP9: What had the Department of Defence done before it referred the matter to the AFP? (PJCIS Sub21.2 Q14a)

A: The AFP understands the Australian Signals Directorate undertook (which at the relevant time was part of the Department of Defence) their own initial enquiries to determine the classification and ownership of the documents. Any further question should be directed to the Australian Signals Directorate.

AFP10: Did the government subsequently declassify all or part of the document cited by Annika Smethurst in her story on 30 April 2018? (PJCIS Sub21.2 Q16)

A: The AFP is not aware of the relevant document cited by Annika Smethurst being declassified.

AFP11: Please provide details of correspondence between AFP and any Minister’s Office on this investigation. (PJCIS Sub21.2 Q18)

A: On 4 June 2019, Assistant Commissioner Debbie Platz advised the Minister for Home Affairs office that a search warrant had commenced and to expect media activity. On 1 July 2019, the AFP provided the Minister for Home Affairs with a general briefing on the proceedings against the AFP in the High Court and the Federal Court respectively in relation to the search warrants executed on 4 and 5 June 2019, and the public comments made by the Attorney-General on 19 June 2019 in relation to the investigation. On 3 July 2019, AFP Deputy Commissioner Neil Gaughan attended a meeting with the Attorney-General to discuss the public comments made by the Attorney-General on 19 June 2019.

AFP12: Please provide details of correspondence between AFP and the Department of Home Affairs on this investigation. (PJCIS Sub21.2 Q18)

A: On 30 April 2019, the Secretary of Defence referred News Corp reporting to the AFP for investigation, copying in the Secretary of Home Affairs.

AFP13: Please provide details of correspondence between AFP and Defence on this investigation. (PJCIS Sub21.2 Q18)

A: On 30 April 2019, the Secretary of Defence referred NewsCorp reporting to the AFP for investigation. Further details of communication between the AFP and the Department of Defence is sensitive operational information. Therefore, the AFP is not in a position to provide further details to the inquiry.

FOI - CRM 2020/356 Folio - 92




ABC / Afghan files investigation / Operation KLASIES

AFP14: What is the total cost to the taxpayer associated with this investigation? (PJCIS Sub21.1 p.4; 21.2 Q40)

A: As at 6 August 2019, the total estimated cost of the investigations were:

- Investigation into the Afghan files disclosure: $140 600

These figures do not include ongoing legal costs in relation to the Federal Court of Australia and High Court of Australia proceedings.

AFP15: When did the alleged unauthorised disclosure of information take place? (PJCIS Sub21.2 Q19)

A: The timing of the alleged disclosure is a central fact in issue that needs to be proven in the criminal prosecution and may be relevant to civil proceedings. The AFP is not in a position to provide further details to the inquiry.

AFP16: When did the AFP make the decision to launch a full investigation into the leak? (PJCIS Sub21.2 Q267)

A: The AFP made a decision to investigate this matter on 19 July 2017.

AFP17: Has the AFP obtained any covert warrants in relation to Dan Oakes, Sam Clark, any other ABC journalist or the ABC itself? If so, when were those warrants obtained? (PJCIS Sub21.2 Q27)


AFP18: Did the Department of Home Affairs or Defence provide the AFP with any evidence that the ABC story had caused any harm to anyone? (PJCIS Sub21.2 Q28-9)

A: The Department of Defence provided the AFP with information on actual and potential harm in relation to the unauthorised disclosure.



- Investigate

FOI - CRM 2020/356 Folio - 93




- refer the matter to a partner agency and, if so, whether AFP will collaborate in a joint investigation

- record it as a criminal matter without investigation due to: o the level of criminality o allocation of resources to higher priority matters o likelihood of successful prosecution o not in the public interest o reject the matter




AFP20: Is it still possible that journalists could be charged in relation to the Afghan Files matter? (PJCIS Sub21.2 Q31-33)

A: When the AFP is conducting an investigation, there is a range of phases the investigation goes through. One of which is a discovery phase, where the AFP collects evidence in relation to people we believe may have committed an offence. As this is an ongoing investigation we cannot rule anything out.

AFP21: how many potential suspects did the AFP identify at the outset of its investigation? (PJCIS Sub21.2 Q35)


AFP22: How many people’s telecommunications data was accessed by the AFP for the purpose of identifying the source? (PJCIS Sub21.2 Q36)


FOI - CRM 2020/356 Folio - 94




AFP23: What had the Department of Defence done before it referred the matter to the AFP? (PJCIS Sub21.2 Q37a-b)

A: The Department of Defence undertook their own initial enquiries to determine the classification and ownership of the documents. Any further question should be directed to the Department.

AFP24: Provide details of the negotiations with ABC. (PJCIS Sub21.2 Q38a-e)

A: The AFP first contacted the ABC in relation to its investigation of the Afghan Files on 13 September 2018. The ABC was contacted 14 times by the AFP. The AFP proposed to execute a search warrant on the ABC premises on a cooperative basis to give minimal disruption to the ABC, its premises and staff. The AFP proposed to provide the ABC with the terms of the search warrant (conditions) for the material sought in advance of the warrant execution. This would allow the ABC to search and extract the information from their systems with minimal interference with the privacy of any individuals involved. Once extracted, the AFP would attend, provide them with the search warrant and receive their material (thus executing the search warrant). Once it became apparent to the AFP the ABC’s cooperation in executing the search warrant was unlikely, the AFP ended the negotiations on 6 February 2019. The AFP first advised the ABC on 25 January 2019 of the intent to obtain and execute a search warrant on ABC premises. The ABC was contacted on 4 June 2019 and was advised the AFP would attend on 5 June 2019 to execute the search warrant. A mutually agreeable time, of 11.30 am was agreed between the AFP and ABC.

AFP25: Did the government subsequently declassify all or part of the documents that were leaked to Dan Oakes and Sam Clark? (PJCIS Sub21.2 Q39)

A: The AFP is not aware of the relevant documents being declassified.

AFP26: Provide details of communications between the AFP and any Minister’s Office. (PJCIS Sub21.2 Q41a-b)

A: On 4 June 2019, Assistant Commissioner Debbie Platz advised the Minister for Home Affairs office that a search warrant had commenced and to expect media activity. On 5 June 2019, The AFP was provided with a copy of the Minister for Home Affairs statement in relation to the search warrants. On 3 July 2019, Deputy Commissioner Neil Gaughan attended a meeting with the Attorney-General to discuss the public comments made by the Attorney-General on 19 June 2019. On 1 July 2019, the AFP provided the Minister for Home Affairs with a general briefing on the proceedings against the AFP in the High Court and the Federal Court respectively in relation to the search warrants executed on 4 and 5 June 2019, and the public comments made by the Attorney-General on 19 June 2019 in relation to the investigation.

AFP27: Provide details of communications between the AFP and the Department of Home Affairs. (PJCIS Sub21.2 Q41c)

FOI - CRM 2020/356 Folio - 95




A: On 5 June 2019, Deputy Commissioner Neil Gaughan received a text message from the Secretary of Home Affairs, about a briefing the AFP attended not relating to the above matter. He also requested he be kept up to date with non-operational political developments.

AFP28: Provide details of communications between the AFP and Defence. (PJCIS Sub21.2 Q41e)

A: On 11 July 2017, the Department of Defence referred this matter to the AFP. On 20 July 2017, the AFP advised the Secretary of Defence via a letter that the referral had been accepted for investigation.

AFP29: When is David McBride’s the next court date? (PJCIS Sub21.4 p.1)

A: 25 October 2019.

FOI - CRM 2020/356 Folio - 96




Au Pair

AFP30: On the raid conducted on the Home Affairs employee's home, did anyone suggest to you the leaking of that information had harmed Australia's national security? (PJCIS Sub21.2 Q53)

A: No information was provided to the AFP in relation to the harm on Australia’s national security.


A: The Senate Standing Committee of Privileges determined parliamentary privilege existed over the relevant documents. As a result there were no further enquiries the AFP could reasonably make and the AFP finalised the investigation.

As the investigation has now been finalised the AFP is able to state it was suspected the alleged unauthorised disclosure took place between 23 – 30 August 2018.

AFP32: what due diligence had the Department of Home Affairs done before it referred the matter to the AFP? (PJCIS Sub21.2 Q44)

A: The AFP understands the Department of Home Affairs undertook their own initial enquiries to inform the referral. Any further question should be directed to the Department of Home Affairs.

AFP33: How many people’s telecommunications data was accessed by the AFP? (PJCIS Sub21.2 Q51a)


AFP34: Did the AFP obtain any other covert warrants in relation to Lisa Martin or any other journalist? (PJCIS Sub21.2 Q52)

A: The AFP is not able to comment on sensitive aspects of investigations that have been, are being, or are being proposed to be undertaken by the AFP. Such sensitivities include the use of statutory powers and the extent to which such powers may be used, or not used, in relation to those persons under investigation. However, the AFP can advise the Committee this investigation did not extend to the activities of any media agencies or journalists.

AFP35: What factors did the AFP consider at the outset of this investigation in relation to the au pair emails? (PJCIS Sub21.2 Q55)


FOI - CRM 2020/356 Folio - 97





investigation - record it as a criminal matter without investigation due to:

o the level of criminality o allocation of resources to higher priority matters o likelihood of successful prosecution o not in the public interest

- reject the matter




AFP36: Why didn’t the AFP follow its standard practice in relation to notifying the Minister? (PJCIS Sub21.2 Q58)

A: The AFP followed its standard practice by complying with the AFP National Guideline on politically sensitive investigations.

Part 11.3 of the National Guideline governs the AFP’s engagement with the Minister during an investigation. Part 11.3 states:

To ensure the AFP's reporting obligations are maintained without compromise to any operational activity, case officers must:

- consult with the relevant manager when considering the timing and content of ministerial reports

- ensure they address any real or perceived conflict of interest when reporting on politically sensitive investigations involving MPs to the MHA

- consider briefing MHA parallel to, or after, operational activity has taken place to avoid any perception of irregularity.

In accordance with Part 11.3, the Minister for Home Affairs’ Office was notified of the search warrant activity on the same day the warrant activity was planned (10 October 2018). For unrelated operational reasons, the warrant ultimately was executed the following day.

The AFP did not consider advising the Minister’s Office the execution of search warrants had commenced, gave rise to a conflict of interest. The notification of the execution of the search warrants was appropriate due to the level of public attention the search warrants were expected to receive. The notification did not involve seeking a decision from the Minister, the Minister’s

FOI - CRM 2020/356 Folio - 98




approval, or any other engagement with the Minister in relation to the AFP’s (then) current or proposed operational activities.

AFP37: How much did this investigation cost the taxpayer? (PJCIS Sub21.2 Q59)

A: The total cost of the investigation as at 3 September 2019 was $21 900.

AFP38: Provide details of correspondence between AFP and any Minister’s Office. (PJCIS Sub21.2 Q60a)

A: On 10 October 2018, AFP National Manager Crime Operations, Assistant Commissioner Debbie Platz, attempted to call the Minister for Home Affairs’ adviser and Chief of Staff. When these phone calls were not answered a text message was sent to the Minister’s Chief of Staff at 11:14am on 10 October 2018:

“Craig. Hi. Our team are executing some search warrants today that may cause some media attention. These relate to the leak of emails relating to the au pair matter. Pls call if you would like further information. Regards Debbie.”

For operational reasons, the AFP decided to conduct the warrant activity the following day (11 October 2018). On 10 October 2018 at 11:52am, AFP Deputy Commissioner Operations, Neil Gaughan, advised the Minister’s Chief of Staff of this update via text message on 10 October 2018 at 11:52am, saying:

“That warrant activity will now be first thing tomorrow morning – Neil”

A response was received:

“Thanks mate – this arvo also fine”

During a telephone conversation at 5.51pm on 10 October 2018, Assistant Commissioner Debbie Platz informed the advisor of impending search warrant activity.

On 11 October 2018, there was email correspondence between AFP employees and the Minister for Home Affairs Office in relation to drafting of a question time brief (QTBs) on the referral from the Department of Home Affairs and the subsequent AFP investigation.

Between the 11 October 2018 and 13 February 2019 there were number of updates to QTBs and other ministerial correspondence.

There has been no communication between the AFP and any other Minister in relation to this matter.

AFP39: Provide details of correspondence between AFP and the Department of Home Affairs. (PJCIS Sub21.2 Q60b)

A: This matter was referred to the AFP by the Department of Home Affairs on 30 August 2018.

FOI - CRM 2020/356 Folio - 99




ASIO Leak Investigation


A: It is alleged the unauthorised disclosure of information took place between 11 December 2018 and 6 February 2019.

AFP41: When was the matter referred to the AFP? (PJCIS Sub21.2 Q62)

A: This matter was referred to the AFP on 7 February 2019.

AFP42: What had the Department of Home Affairs done before it referred the matter to the AFP? (PJCIS Sub21.2 Q63a-b)

A: The AFP understands the Department of Home Affairs undertook their own initial enquiries to determine the classification and ownership of the documents. Any further question should be directed to the Department.

AFP43: When did the AFP make a decision not to launch a full investigation into the leak? (PJCIS Sub21.2 Q68)

A: The AFP made a decision not to commence an investigation into this matter on 20 March 2019.

AFP44: Provide details of telecommunications data accesses, JIWs, covert warrants for this investigation (PJCIS Sub21.2 Q6-a-b)

A: The AFP did not commence an investigation into this matter.

AFP45: How many, people had access to the classified advice prior to it being leaked to a journalist? (PJCIS Sub21.2 Q71)

A: During the initial assessment of the referral, the AFP ascertained over 200 people accessed or had access to the information.




investigation

FOI - CRM 2020/356 Folio - 100




- record it as a criminal matter without investigation due to: o the level of criminality o allocation of resources to higher priority matters o likelihood of successful prosecution o not in the public interest

- reject the matter




AFP47: How is it possible to conclude that there are “limited prospects of identifying a suspect” before launching a full investigation? (PJCIS Sub21.2 Q76)

A: Prior to commencing an investigation the AFP established processes require the AFP to consider the likelihood of a successful investigation and the required resourcing to undertake such an investigation.

In this matter there was large number of people who had accessed, or had access to, the relevant material which severely reduced the possibility of narrowing the number of potential suspects down to a suspect. As such, the likelihood the AFP could undertake a successful investigation in these circumstances was extremely low.

AFP48: Provide details of communications between AFP and any Minister, the Department (PJCIS Sub21.2 Q79a-c)

A: There were no communications between the AFP and the Minister in relation to this matter. There were no communications between the AFP and any other Minister in relation to this matter. There was no communications between the AFP and the Secretary of the Department of Home Affairs or his office in relation to this matter. The AFP investigators made contact with the Department of Home Affairs Integrity Unit during the investigation.

FOI - CRM 2020/356 Folio - 101




Ministerial Submission

AFP49: How many ministerial directions are currently in force? (PJCIS Sub21.2 Q81-84)

A: Both the Ministerial Direction issued by the former Minister for Justice, the Hon Michael Keenan MP, on 12 May 2014 and the Ministerial Direction issued by the Minister for Home Affairs, the Hon Peter Dutton MP, are currently in force and publically available on the AFP’s website. The 2014 Ministerial Direction superseded an earlier Direction issued in 2010.

The AFP’s website currently lists both Ministerial Directions that are in force. When the new Ministerial Direction was posted to the website on 9 August 2019 the old Direction was inadvertently removed from the AFP public website. This was an administrative error that was resolved by 12 August 2019.

AFP50: Provide the commissioner’s advice on the ministerial direction. (PJCIS Sub21.2 Q86)

A: The joint advice to the Minister for Home Affairs resulted in the public release of the Ministerial Direction. As the joint advice formed part of a deliberative process involved in the functions of the Minister of Home Affairs, the AFP is not in a position to provide it to the inquiry.

AFP51: How does this direction represent a departure from what the AFP was already doing? (PJCIS Sub21.2 Q87)

A: The Ministerial Direction issued on 8 August 2019 formalises the public interest considerations that AFP takes into account when assessing whether to commence an investigation and clearly specifies that the importance of a free and open press should be taken into account as well as broader public interest implications. The Ministerial Direction also directs the AFP to exhaust alternative investigative actions prior to considering whether investigative action involving a professional journalist or news media organisation is necessary. Finally, the Ministerial Direction directs the AFP to strengthen its guidance and processes around unauthorised disclosure referrals.

FOI - CRM 2020/356 Folio - 102




Other

AFP52: Provide details on the number of referrals AFP has received for potential unauthorised disclosure offences from 1 July 2004 to present (PJCIS Sub21.2 Q88 a-e)

A: Due to ICT limitations, the AFP can only provide statistics in relation to unauthorised disclosure offences from January 2013- June 2019.

From the period of January 2013 to June 2019 the AFP has received in order of 100 referrals relating to alleged Commonwealth unauthorised disclosure offences.

From the period 1 January 2013 to 30 June 2019, the AFP received 19 referrals relating to the unauthorised disclosure of SECRET or TOP SECRET information. 14 of these were accepted for investigation.

From the period 1 January 2013 to 30 June 2019, the AFP received 80 referrals relating to the unauthorised disclosure of information classified “protected” or below. 53 of these were accepted for investigation.

From the period 1 January 2013 to 30 June 2019, the AFP has spent approximately $3,691,000 on unauthorised disclosure investigations.

AFP53: Provide details of any investigation or use of powers in relation to a PJCIS member or staff, as part of an unauthorised disclosure investigation (PJCIS Sub21.2 Q89-92).

A: Questions on hold.

AFP54: Provide details of all search warrants in relation to journalists (PJCIS Sub21.2 Q93-97, 113-1124).

A: The AFP retains records in the terms required by law, which do not include a person’s occupation. Accordingly, the AFP does not keep specific records for the occupation of the person in relation to search warrants. Therefore, the AFP cannot provide a specific figure in relation to how many search warrants have been obtained ‘in relation to a journalist’ across all crime types.

AFP55: Provide details of surveillance devices or telecommunication intercepts in relation to journalists (PJCIS Sub21.2 Q98-112).

A: In relation to unauthorised disclosure investigations since 2013 the AFP has not located any record of having applied for, or obtaining, any surveillance device warrants in relation to a journalist.

The AFP retains records in the terms required by law, which do not include a person’s occupation. Accordingly, the AFP does not keep specific records for occupation type in relation to surveillance device warrants. Therefore, the AFP cannot provide a specific figure in relation to how many surveillance device warrants have been obtained ‘in relation to a journalist’ across all crime types.

FOI - CRM 2020/356 Folio - 103




AFP56: Provide details of engagement with the Minister’s Office and the Department of Home Affairs on this inquiry. Has the AFP ever been directed not to provide information to the PJCIS? (PJCIS Sub21.5 Q9-13).

A: The AFP provided the Department of Home Affairs with a copy of the AFP’s draft submission for information on 19 July 2019. The Department did not provide feedback on the draft submission.

The AFP provided the Minister’s Office with a copy of the AFP’s draft submission for information on 22 July 2019. The Department did not provide feedback on the draft submission.

A copy of the AFP’s unclassified response to the Committee’s written questions was provided to the Department of Home Affairs (described as submission 21.2 on the Committee’s website) on 17 September 2019. The Department did not provide feedback.

The AFP provided the Minister for Home Affairs’ Office with a copy of:

- The AFP’s responses to questions taken on notice at the hearing on 14 August 2019 (described as submission 21.1 on the Committee’s website) on 26 August 2019; and

- The AFP’s responses to questions 1-41, 61-88, and 93-126 on 11 September 2019, and questions 42-60 on 16 September 2019 (described as submissions 21.2 and 21.3 on the Committee’s website).

The Minister’s Office did not provide feedback.

It is regular practice for the Department of Home Affairs to discuss policy matters, parliamentary and ministerial matters, and law reform matters with portfolio agencies including the AFP. This includes, but is not limited to, a regular fortnightly meeting. This includes PJCIS and other Committee inquiries. Ongoing engagement with the AFP is a normal part of the Department of Home Affairs’ role as the policy department for the Home Affairs portfolio and not every discussion is documented or recorded as part of the AFP’s duties to engage with the Department.

The AFP has not identified any instance where the AFP was directed not to provide information to this Committee.

AFP57: Does the AFP regard an unauthorised disclosure of Commonwealth information as theft? (PJCIS Sub 21.4 p.5; Sub21.5 Q19)

A: Unauthorised disclosure offences and Commonwealth theft offences are discrete types of offences. In a particular factual setting those offences may have a degree of overlap, but this is not uncommon in the criminal law. The offence types are distinguished by their different physical and fault elements - for example, an authorised disclosure offence typically involves the communication of Government information from a person with authorised access to the information, to a third party who does not.

It follows that although taking property belonging to the Commonwealth can amount to a theft offence (see for example, Part 7.2, Division 131 of the Criminal Code), the application of a theft offence in the context of an alleged unauthorised disclosure of information is very dependent upon the circumstances of each individual case. It is not possible to state whether a theft offence is potentially applicable in every matter that might also involve an unauthorised disclosure.

The AFP’s role is to impartially investigate an allegation and form an initial view as to what criminality, if any, is revealed by the evidence gathered in the investigation. Selection of charges is a

FOI - CRM 2020/356 Folio - 104




matter for the prosecution, under the Prosecution Policy of the Commonwealth. The prosecutor’s role includes careful consideration of the most appropriate charge(s) if the alleged conduct may involve more than one type of offence.

Documents provided

- AFP referral template (pro forma) - AFP Case Categorisation Prioritisation Model - National Guideline on Politically Sensitive Information - A copy of the referrals for the News Corp, Afghan files and Au Pair matters - Ministerial Directions

FOI - CRM 2020/356 Folio - 105







Member of Parliament (MP) - for the purposes of this guideline, means any member of the Commonwealth House of Representatives or the Senate, or a state or territory equivalent.

Parliamentary privilege - means the protection of the proceedings of parliament.

Politically sensitive matter - means matters under investigation which either:

◾ are likely to be of particular interest to:◾ the Commonwealth Government◾ MPs◾ foreign governments◾ the media◾ the community.

◾ involve interference with the administration of good government◾ have the ability to adversely impact on international relationships◾ have potential adverse implications concerning:

◾ an MP◾ MP staff◾ a senior member of the Commonwealth Public Service◾ another politically significant figure.

◾ are triggered by Australia s international obligations.

Examples of politically sensitive matters include:

◾ war crimes◾ bribery or corruption of domestic and foreign officials◾ unauthorised disclosure of Commonwealth information◾ ministerial misconduct.

4. Guideline authority

This guideline was issued by National Manager Crime Operations using power under s. 37(1) of the Australian Federal Police Act 1979 (Cth) as delegated by the Commissioner under s. 69C of the Act.

5. Introduction

This guideline outlines the framework for managing politically sensitive investigations and politically sensitive matters that have been referred to the

Page 2 of 7AFP National Guideline on politically sensitive investigations - AFP Hub

24/10/2019http://afphub.afp.le/GovernanceFramework/NationalGuideline/Pages/NAT11130.aspx

FOI - CRM 2020/356 Folio - 107




AFP for evaluation, but that have not yet been accepted for investigation. It does not cover counter terrorism investigations.

6. Policy

Politically sensitive investigations within the AFP are managed, reported and undertaken with complete impartiality. This approach is consistent with the AFP s approach to all investigations. The AFP s investigation management principles must be strictly adhered to. Politically sensitive investigations must also consider broader Australian policy and Australia s international obligations.

7. Matter referral

When politically sensitive matters are referred to the AFP, the relevant manager must be consulted during the referral process.

Where a matter is referred directly to the AFP and not via the Minister for Home Affairs (MHA), the AFP must advise the MHA at the earliest opportunity unless there may be a conflict of interest in accordance with s. 11.3 of this guideline.

All reporting to ministers must be conducted in consultation with the relevant manager and in accordance with the AFP Practical Guide on ministerial and parliamentary procedures.

8. Referral evaluation

All matters which are considered to be politically sensitive must be evaluated in consultation with the relevant manager, who should determine their priority in accordance with the Case Categorisation and Prioritisation Model.

As referral documentation may initially be limited, coordinating further information should be conducted in consultation with the referring body.

9. Parliamentary privilege

When parliamentary privilege issues are likely to be encountered during an investigation, the functional management team should be consulted in the first instance.

The relevant National Manager must be consulted prior to:

◾ conducting interviews with Members of Parliament (MP)◾ executing search warrants upon MP s premises.



FOI - CRM 2020/356 Folio - 108




Members undertaking politically sensitive investigations should familiarise themselves with the AFP National Guideline for the Execution of Search Warrants where Parliamentary Privilege may be involved which outlines procedures members must follow when seizing documents/property related to 'proceedings in parliament'.

When dealing with parliamentary privilege issues, members should also consider consulting with:

◾ AFP Legal◾ the Commonwealth Director of Public Prosecutions◾ the Attorney-General's Department◾ the Australian Government Solicitor, on referral from AFP Legal.

10. Case security

The case officer should give early consideration to restricting access to any potentially sensitive information by those not required to access it.

Members must consider restricting access to case information by referring to National PROMIS Procedure 13 - Team level cases and team level entries.

11. Record keeping and reporting

11.1 Recording decisions

All decisions should be comprehensively recorded in the PROMIS case. If the decision is made by a member of the AFP Senior Executive, the case officer should enter the details of that decision into PROMIS and ensure that the decision maker is provided with a copy of that log entry. Any notations or signing of a decision should also be scanned and uploaded into the PROMIS case by the case officer.

11.2 Internal reporting

Case officers must ensure that internal reporting is proactive, prompt, accurate and comprehensive and must consider early consultation with the relevant manager to develop agreed reporting timeframes and methodologies.

The senior investigating officer or case officer should also provide regular briefings to the relevant coordinator, when possible. In all circumstances, the relevant manager must be kept up to date on all politically sensitive investigations. Sharing information beyond this line of reporting must be conducted strictly on a need to know basis.



FOI - CRM 2020/356 Folio - 109




Internal reporting to the relevant manager team should include:

◾ milestone achievement◾ investigation direction◾ media interest◾ communication strategies ◾ anticipated engagement with either:

◾ a Member of Parliament (MP) ◾ the staff of an MP ◾ a Commonwealth Public Service employee ◾ any other politically significant figure.

11.3 Ministerial reporting

All Ministerial reporting should be conducted in accordance with the AFP Practical Guide on ministerial and parliamentary procedures and take into account the individual characteristics of the particular investigation.

Where any perceived conflicts of interest in briefing the Minister of Home Affairs (MHA) exist, the AFP Senior Executive must be advised at the earliest opportunity so appropriate and preventative action can be taken.

To ensure the AFP's reporting obligations are maintained without compromise to any operational activity, case officers must:

◾ consult with the relevant manager when considering the timing and content of ministerial reports

◾ ensure they address any real or perceived conflict of interest when reporting on politically sensitive investigations involving MPs to the MHA

◾ consider briefing MHA parallel to, or after, operational activity has taken place to avoid any perception of irregularity.

11.4 Media reporting

Any media reporting must be conducted in accordance with the Handbook on AFP National Media.

Functional areas should consider developing a media strategy which should be coordinated with the AFP National Media Team and take into account the information security considerations above.

The timing and contents of all AFP media reporting must be determined in consultation with the relevant manager and the AFP National Media Team, with all media reports being cleared, at a minimum, by the relevant manager.



FOI - CRM 2020/356 Folio - 110




12. Interdepartmental committee/emergency taskforce

Depending on the nature of the matter, a joint agency or whole of government response may be required. If so, an interdepartmental committee or emergency taskforce may be established by the lead Commonwealth agency and should include a representative from the relevant AFP function.

13. Further advice

Queries about the content of this guideline should be referred to Manager Special References on 02 61315786 or 145786.

14. References

AFP governance instruments

◾ AFP National Guideline for Execution of Search Warrants where Parliamentary Privilege may be involved

◾ AFP Practical Guide on ministerial and parliamentary procedures◾ Handbook on AFP National Media.

Other sources

◾ National PROMIS Procedure 13 - Team level cases and team level entries◾ Case Categorisation and Prioritisation Model

Last modified: 3/10/2018 11:33 | Review due: 29/06/2013 | Author:

This page is classified as For Official Use Only | Intranet conditions of use | Site map | Hub Admin

© Commonwealth of Australia 2019

NATIONAL

ACT POLICING

AFP Hub

AFP website



FOI - CRM 2020/356 Folio - 111




ACT Policing website

ACT Policing News website

AFP News Online

Governance Framework

Investigator's Toolkit

Tools and utilities



FOI - CRM 2020/356 Folio - 112




Pages 113 through 121 redacted for the following reasons:- - - - - - - - - - - - - - - - - - - - - - - - - - - -s46(c)










1

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.

Press FreedomSubmission 15

FOI - CRM 2020/356 Folio - 124




2

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.


FOI - CRM 2020/356 Folio - 125




3

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.


FOI - CRM 2020/356 Folio - 126




4

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.


FOI - CRM 2020/356 Folio - 127




5

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.


FOI - CRM 2020/356 Folio - 128




6

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.


FOI - CRM 2020/356 Folio - 129




7

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.


FOI - CRM 2020/356 Folio - 130




8

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.


FOI - CRM 2020/356 Folio - 131




9

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:Matt Peacock: Helen Grasswill:


FOI - CRM 2020/356 Folio - 132
















Why did the AFP Commissioner and DC 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?

This is best answered by the Deputy Commissioner. However a theft offence did not apply in relation to the Smethurst search warrant. 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?

- A criminal investigation is dynamic and initial offences are discounted or strengthened through the collection of evidence, which addresses the elements of each offence, and the most appropriate offences are then determined based on that evidence and any other factors.

- It was not mentioned in the ABC warrant because by that point in the investigation the investigations team had determined it not to be the most appropriate offence, given the evidence obtained.

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?

- No. The AFP at no time approached the Attorney General’s office or asked the

CDPP to approach the Attorney General’s office.

- The process for obtaining the “consent to prosecute” of the Attorney General, is undertaken by the CDPP and only after the full brief of evidence has been provided by the AFP, and the brief of evidence has been appropriately considered by the CDPP.

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” is in

the public interest? - Whilst the investigation is ongoing it is inappropriate to speculate on whether a

journalist may or may not be charged or on what charges may be considered appropriate to the circumstances.

- The consideration of a “free and open press” will be taken into consideration as part of all facets of “public interest” considerations.

FOI - CRM 2020/356 Folio - 137




FOI - CRM 2020/356 Folio - 138


