AFP officers raiding Parliament House last week

The threat to the freedom of the press represented by the AFP’s raid last week in Parliament House is more serious even than Bernard Keane has warned.

Bernard, of course, has been diligently reporting on the topic ever since the first raids in May, on Stephen Conroy’s Melbourne office and the homes of two of his former staffers. The ABC’s Media Watch also dealt with the issue at some length in May. It posted a redacted version of the AFP’s first search warrant — just as this time, the ABC’s Lateline has posted an unexpurgated search warrant, signed by B.C. Boss, of the ACT magistrates’ court.

Those warrants make clear that the AFP thinks it has grounds to suspect that two sections of the Crimes Act were breached when someone leaked confidential NBN documents to Labor staffers, who subsequently passed them on to journalists at The Sydney Morning Herald, The Australian, the Delimiter blog, and the ABC.

Media Watch concentrated on one of those sections — the notorious section 70, which makes it a crime, punishable by two years imprisonment, for any “Commonwealth officer” to pass on to an unauthorised person any information whatsoever that comes their way in the course of their duties.

Paul Barry quite rightly asked why this extraordinary law is still on the statute books, despite the recommendation of, among others, the Australian Law Reform Commission that it should be repealed.  He answered that it was there because governments of both parties have been in the habit of using it to pursue inconvenient and embarrassing leaks.

But so far, to my knowledge, only Delimiter’s Renai LeMay, and I, in my final regular Fairfax column, have written about the second section of the Crimes Act that the AFP’s lawyers believe has been breached — and it is far more worrying.

According to the most recent warrant, the AFP suspects that “between 1 August 2014 and 26 March 2016 … Mr Andrew Walter Byrne … did receive documents knowing at the time he was not authorized to receive the documents, contrary to section 79(6) of the Crimes Act 1914”.

Section 79 has been on the statute books for more than a hundred years. It is headed “official secrets”. It is Australia’s version of Britain’s Official Secrets Act, and is clearly aimed at guarding military and security secrets — the plans of military bases, the blueprints of warships, the plans of military staffs and so on. Unlike section 70, the use of section 79 to pursue the recipient of a leak that has nothing to do with national security is (to my imperfect knowledge) absolutely unprecedented.

The point of using section 79(6), as opposed to section 70, is that it criminalises the recipient of a leak, as well as the leaker. It doesn’t matter what you do with the information: whether you pass it on, or publish it, or just keep it on your hard drive. If you receive “secret” Commonwealth information, knowing that you are not authorised to do so, you are liable under section 79 to two years’ imprisonment. The only way you can avoid the charge is to dob in the leaker.

In this instance, the suspect is a Labor staffer. But had any of the media organisations that published stories based on the leaked documents been approached directly by the leaker, their journalists, too, would presumably be liable to pursuit and prosecution by the AFP under section 79, even if they published nothing at all.

It’s hard to imagine a more serious attack on investigative journalism, and on the ability of the media to hold government to account. If section 79 can be used with reference to some documents about the financial viability of the NBN, it can be used to pursue the recipient of leaks of pretty much any official information.

Of course, as Bill Shorten has pointed out, it’s arguable that the NBN Co is, according to its own legislation, not a Commonwealth enterprise and its employees are not Commonwealth officers. Neither section 70 nor 79 of the Crimes Act, arguably, can apply, and the AFP is acting well outside its own powers.

But Labor is obsessed with trying to show that the Turnbull government is behind the AFP raids.  Turnbull is outraged that Bill Shorten should even dare to question the AFP’s right to do whatever it likes. To my mind, what these warrants show is that the AFP is an agency that is effectively out of control.  No magistrate should have granted them, and the media should have immediately united in outrage against them.

But it has not.

I’ve written before that it’s no exaggeration to say that this country is on its way to creating a secret police. And the erstwhile defenders of Australia’s Right to Know — News Corporation Australia, Fairfax Media, the ABC, Seven West Media, and the rest of the MSM — are uttering barely a murmur of protest.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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