Federal police raids over NBN leak should ring alarm bells for journalists
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Version 0 of 1. The last two people who were successfully prosecuted in Australia for receiving and disclosing an “official secret” were a former intelligence officer and the prostitute he gave classified documents to for the purposes of selling them on to a foreign government. But now, for the first time in decades, the Australian federal police has dusted off this rarely used law. There are no prostitutes this time, and no sordid allegations of espionage or intrigue. Instead, there’s a Labor staffer who is under investigation for allegedly receiving documents tantamount to an “official secret” from an anonymous source. The documents, according to Labor, are nothing to do with national security but do show failings and cost blowouts in the construction of Australia’s highly politicised national broadband network. Labor argues the Coalition is particularly sensitive about the leaks because they show that despite Malcolm Turnbull’s promise the Coalition could deliver a cheaper NBN in less time than Labor’s plan, it is now over budget and behind schedule. The execution of a second series of search warrants this week by the AFP at Parliament House in the course of this investigation made for plenty of dramatic stock video footage as police officers scurried through parliament. And it’s provoked a political tit for tat between Labor senator Stephen Conroy and the prime minister, Malcolm Turnbull, over the AFP’s decision to take up the case and their independence. To add to the complicated legal issues at play, Labor has also made a claim of parliamentary privilege over some of the documents that have been seized by the AFP. But if you peer beyond the back and forth there are some urgent and pressing issues the raids throw up that go to the heart of Australia’s political system. And they raise vital concerns for all journalists in Australia. We know that the federal police have been quite active in pursuing journalists’ sources with a view to prosecuting them. This often occurs in politically sensitive areas such as immigration. Whistleblowers from the detention system have had their phone records accessed. My own email and phone records were obtained by the AFP as part of an investigation into my sources from the detention system. All of this has been done under the still quite serious offence under s70 of the Crimes Act which specifically prohibits disclosures made by commonwealth officials. This offence targets the source, not the journalist. But what’s unusual about the NBN raids is that the even more serious “official secrets” offence under s79 of the Crimes Act is now being invoked to seek to investigate – and potentially prosecute – the Labor staffer Andrew Byrne himself for allegedly receiving the documents as well as the unnamed source for disclosing them, according to the warrants issued. No charges have been brought against Byrne but the investigation is obviously active. There are two early conclusions that could be drawn from the AFP’s decision to investigate Byrne for allegedly receiving an official secret. The first is that the offence is being used as a way to get their search warrants over the line, in order to work out the source of the NBN leaks. If this were true then it could be seen as a serious abuse of process. The second is that the AFP really are serious about throwing the book at Byrne. And if that’s the case then it would be probably the first time in Australia’s history that the official secrets offence has been used to target someone for anything short of serious espionage. The AFP’s argument will no doubt be that the NBN is a core part of national infrastructure – and that the documents disclosed are a matter of national security capable of reaching the threshold of an official secret. That’s not how official secrets have traditionally been considered though. And the use of the offence is even more bizarre given the controversy over whether NBN employees could even be considered “commonwealth officers” – a point quite rightly flagged by Conroy. As Conroy has repeatedly highlighted, the NBN Co has an express statutory clause outlining that it is not a public authority. How then can the officers the AFP are investigating as the sources of the alleged leak be considered commonwealth officers? This entire process has obviously alarmed Labor, but it should be alarming journalists as well. The worrying prospect for journalists in Australia is that the same offence could be used to justify not only executing search warrants of a news organisation, but even the prosecution of a journalist who has received a bundle of leaked documents that embarrass the commonwealth government. If the AFP can seriously mount the case that disclosing documents about the NBN is matter of national security serious enough to invoke the official secrets offence, then the case could equally be made in many other areas. Immigration springs to mind as one area where the AFP has already been active in seeking to investigate and prosecute sources. But why not housing? Why not finance and banking? That most nebulous idea of national security could be twisted to suit the politics of the day. There would be nothing to stop the federal police investigating a journalist as the alleged perpetrator of the official secrets offence by simply doing their job: being in receipt of documents that show wrongdoing by commonwealth officials. Labor’s battle against the federal police raids should be seen as a threat to every journalist and news organisation in the country. If the federal police investigation is ultimately successful, it sets a most dangerous precedent over the reach of the official secrets offence. And it may embolden them to one day pursue a journalist in the same way. |