AFP investigators leave the ABC's Ultimo headquarters (Image: AAP/Bianca De Marchi)

Over the weekend, the federal government and its agencies sent an unspoken but clear message to confidential sources — if your leak suits the government (or its agencies) you’ve got nothing to worry about.

This message came via reports that “due to the limited prospects of identifying a suspect” the AFP was ending its investigation into the front-paged leak of apparent security concerns over February’s Medevac legislation.

Remember: this was security advice to the government. And on Sunday, News Corp’s papers suggested why the prospects may have been so limited. The leak that led to the Smethurst raid was similarly about confidential security advice to government — actually a pitch for even greater powers. Yet, according to the papers, the police on the raid were told they weren’t interested in contacts from politicians.

It’s a reminder that while whistleblowers are some of the most courageous people you can meet, not all confidential sources are so high-minded. From Canberra to Washington, most leaks from confidential sources are just the continuation of politics by other means.

Notoriously, New York Times journalist Judith Miller (who had been reporting on the lead up to the Iraq war) was jailed for contempt of court in 2004 for refusing to say who had leaked the identity of CIA agent Valerie Plame.

In the end it turned out to be vice president Cheney’s Chief-of-staff, Scooter Libby. He had leaked Plame’s identity in apparent revenge for a 2002 op-ed (also in the New York Times) by her husband Joseph Wilson which refuted Bush administration claims that the Saddam Hussein regime in Iraq was purchasing uranium. Libby was convicted of obstruction of justice in 2007 and, in a story that never goes away, pardoned by President Trump last year.

It’s this self-interest of political sources that leads the Australian journalists’ code of ethics to say: “Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.” (Disclosure: I was involved in drafting this iteration of the Code of Ethics.)

Australian journalists have been staunch in upholding this principle despite attempts by courts and prosecutors since 1989 to break it through jailing and prosecuting journalists for contempt of court. No doubt, if he’d been prime minister at the time, Morrison would have applauded this upholding of the law.

Now, journalists have heard the message that the state — the government and its agencies — is again attempting to break the principle through the use of police raids at home and at work. These raids are not new. But one following the other, day following day, suggests that the tactic is being taken to a new level.

For all the talk about the impact of the more recent national security laws, this has been a tactic open to the AFP for as long as the Crimes Act has made leaking confidential information a crime.

It’s a tactic that’s likely to backfire. It will almost certainly make journalists even more cautious than they already are, particularly when dealing with national security reporting.

Meanwhile, in a UK court, we’re seeing the next phase of the assault on confidential sources emerge with the attempted extradition  of Julian Assange by the US for “conspiring”, almost “grooming” a confidential source.

Under the Australian Crimes Act, leaking has long been a crime, despite the 1990s recommendation by former Chief Justice Harry Gibbs that it should be more constrained. Receiving leaked information (as journalists do) is, generally speaking, not a crime. The Howard Government briefly toyed with extending the crime to the receiver of the leak, but, after media protests, dropped it.

Too many journalists take comfort in the thought that Assange is an outlier — perhaps a source, not a journalist. Yet, this matters only in the US, where the Constitution’s Bill of Rights has been interpreted to provide a particular privilege to journalists. That’s not the case in Australia, other than recent source protection laws that are weak tea.

“Conspiracy” has long been the charge of choice for a state eager to extend the reach of its laws. If the US successfully prosecutes Assange, last week’s raids suggest Australian authorities will struggle to resist the temptation to try their hand.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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