Media raids on ABC and Newscorp journalist Annika Smethurst could have been better handled, AFP admits
By Michael Inman and Tom Lowrey
Updated Tue at 7:15pm
RELATED STORY: 'Bad day for Australian journalism': ABC loses court case over Afghan Files raids
RELATED STORY: What do the AFP raids mean for journalists and their sources?
Australia's top cop admits the Australian Federal Police (AFP) could have better handled media raids on the ABC and the home of a Newscorp journalist, but threw his support behind investigators, saying they were simply abiding by their oath to uphold the law.
Key points:
A review of the AFP's handling of media raids found community confidence in the force was "negatively impacted"
Commissioner Reece Kershaw says the AFP's communication "could have been better"
Separate investigations of the ABC and Newscorp's Annika Smethurst, as a result of the raids, are still active
n June last year, AFP officers searched ABC computer systems for files linked to a series of 2017 reports known as The Afghan Files.
The reports covered allegations of unlawful killings by Australian soldiers in Afghanistan.
The raid on the ABC's Sydney headquarters happened just a day after a raid on the home of Newscorp journalist Annika Smethurst, linked to leaked classified information she had used in stories more than a year earlier.
The Afghan Files
The ABC's Afghan Files stories in 2017 gave an unprecedented insight into the operations of Australia's elite special forces, detailing incidents of troops killing unarmed men and children and concerns about a "warrior culture" among soldiers.
Both investigations are still active and the AFP provided no suggestion they would be dropped.
But Commissioner Reece Kershaw — who replaced predecessor Andrew Colvin a month after the raids — commissioned a report on how similar "sensitive" investigations should be handled in the future.
The review, by former Australian Crime Commission head John Lawler, was released late last week and found community confidence in the AFP had suffered as a result of its investigations of how national security information had found its way into the media.
Speaking publicly for the first time since both the report's release and this week's Federal Court ruling against the ABC, Commissioner Kershaw acknowledged the AFP could manage delicate investigations better.
'Our communication could have been better'
The Commissioner said the review took a much broader approach than the two investigations of the ABC and Smethurst, but admitted they were a "trigger point".
He said, with hindsight, the AFP's handling was not perfect, as images of officers raiding a journalist's home and at the front doors of the ABC were broadcast across the country.
(ABC News: Brendan Esposito )
"We may have been able to improve some of our communication and expectations of what is going to occur," he said.
"I always think that's probably an area we can improve in. And I have acknowledged that perhaps some of our communication could have been better in those matters.
"I think, as police, we're always wanting to improve, and I don't think there's anything wrong with that."
Opportunity for reform
The Lawler review provided 24 options for change, including formalising a definition of what constituted a "sensitive investigation", communicating directly with media outlets under investigation, changing the language of the status of investigations and establishing an escalation framework when a sensitive investigation was declared.
The Commissioner adopted all of the recommendations in principle and an AFP team is reviewing them.
"We may have been able to improve some of our communication and expectations of what is going to occur," he said.
"I always think that's probably an area we can improve in. And I have acknowledged that perhaps some of our communication could have been better in those matters.
"I think, as police, we're always wanting to improve, and I don't think there's anything wrong with that."
Opportunity for reform
The Lawler review provided 24 options for change, including formalising a definition of what constituted a "sensitive investigation", communicating directly with media outlets under investigation, changing the language of the status of investigations and establishing an escalation framework when a sensitive investigation was declared.
The Commissioner adopted all of the recommendations in principle and an AFP team is reviewing them.
PHOTO: The Lawler Review provided 24 recommendations for change within the AFP, all of which have been adopted in-principle by Commissioner Kershaw. (ABC News: Tamara Penniket)
"It's a great opportunity for change and reform in those areas," Commissioner Kershaw said.
"We're setting up a new senior executive board that looks at those sensitive matters so that we, as an executive, have full coverage of the sensitive investigations and whether or not they've got enough resources, or the timelines are met … and so on.
"So it's a broader definition. It sort of recognises the complex work and the complex environment we're now operating in."
Cases still remain in a state of limbo
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VIDEO: The Australian Federal Police entering the ABC headquarters in Ultimo (Photo - ABC News: Taryn Southcombe) (ABC News)
The AFP had a win on Monday, when the Federal Court threw out the ABC's case over the raid on its Ultimo headquarters, finding the police warrants used were legal.
Despite this, the Lawler review noted that "community and stakeholder confidence in the AFP [had] been negatively impacted as a result".
And Commissioner Kershaw was not gloating about the court's decision.
"I wouldn't say it's pleasing. I'd say it's an outcome," he said.
"But we know that, often, matters can be appealed, so it's not over until it's over."
Despite the Federal Court decision, both the ABC's case and the case against Smethurst remain in a state of limbo — unable to progress due to ongoing court action.
Federal Attorney-General Christian Porter says he wants them both finished.
"I am very frustrated about the time that it's taking to resolve this matter, as are other senior ministers. That is a frustration that has been voiced," he said.
Journalists are not above the law: Attorney-General
Some, including ABC managing director, David Anderson, are calling for explicit protections for journalists and whistleblowers.
Mr Porter said protections for journalists might be worthwhile, but journalists were not above having their homes searched.
I live-tweeted the raids on the ABC — and it was a first for the AFP
John Lyons spent nine hours in a room with six AFP officers — who were unfailingly polite and respectful — but who were doing something he believed attacked the very essence of journalism.
"If what is being suggested is that the law be changed so that is no longer in the future legally possible to execute a warrant on a third party's house, even if that third party is a journalist, even if the warrant pertains to the retrieval of information on a very, very serious criminal matter, then I'm not sure that I accept that that is the starting point for law reform in this area," he said.
Last year, Mr Porter directed Commonwealth prosecutors to get his office's consent before prosecuting a working journalist.
The Lawler review suggested the AFP adopt the same protocol, seeking the Attorney-General's advice before proceeding with an investigation involving a journalist.
It found the idea had merit, but came with a range of legal complexities.
Commissioner Kershaw said he supported the idea in principle, but "it's the how-to bit that is probably the more difficult component".
AFP not politicised, Commissioner says
In the wake of this week's Federal Court decision, ABC head of investigative journalism John Lyons contrasted the probe into the ABC with the now-abandoned investigation into Energy Minister Angus Taylor.
"After 18 months, we still have two journalists that face possible criminal charges," Mr Lyons said.
"I contrast this to Angus Taylor and what the AFP's treatment of him was — that case was over within weeks."
Earlier this month, the AFP decided to not pursue an investigation into Mr Taylor and his office, after the Minister used an allegedly forged document in a political attack against Sydney Lord Mayor Clover Moore.
But Commissioner Kershaw dismissed the comparison, saying the AFP was independent and the force had not been politicised.
"Minister Taylor's referral, from my information, was not relating to national security, [while] those other two matters are relating to national security," he said.
"I think there's a big difference between comparing those matters.
"As police … we follow the evidence and we gather evidence. I'm able to operate independently, as my officers are, and we haven't had any sort of political interference.
"We want to make sure that we focus on crimes, which is what we're here to do, enforce the law. And that's the lane that we need to stay in."
"It's a great opportunity for change and reform in those areas," Commissioner Kershaw said.
"We're setting up a new senior executive board that looks at those sensitive matters so that we, as an executive, have full coverage of the sensitive investigations and whether or not they've got enough resources, or the timelines are met … and so on.
"So it's a broader definition. It sort of recognises the complex work and the complex environment we're now operating in."
Cases still remain in a state of limbo
Space to play or pause, M to mute, left and right arrows to seek, up and down arrows for volume.
6666666666666666666666666666666666666666666666666666666666666666666666666666666
VIDEO: The Australian Federal Police entering the ABC headquarters in Ultimo (Photo - ABC News: Taryn Southcombe) (ABC News)
The AFP had a win on Monday, when the Federal Court threw out the ABC's case over the raid on its Ultimo headquarters, finding the police warrants used were legal.
Despite this, the Lawler review noted that "community and stakeholder confidence in the AFP [had] been negatively impacted as a result".
And Commissioner Kershaw was not gloating about the court's decision.
"I wouldn't say it's pleasing. I'd say it's an outcome," he said.
"But we know that, often, matters can be appealed, so it's not over until it's over."
Despite the Federal Court decision, both the ABC's case and the case against Smethurst remain in a state of limbo — unable to progress due to ongoing court action.
Federal Attorney-General Christian Porter says he wants them both finished.
"I am very frustrated about the time that it's taking to resolve this matter, as are other senior ministers. That is a frustration that has been voiced," he said.
Journalists are not above the law: Attorney-General
Some, including ABC managing director, David Anderson, are calling for explicit protections for journalists and whistleblowers.
Mr Porter said protections for journalists might be worthwhile, but journalists were not above having their homes searched.
I live-tweeted the raids on the ABC — and it was a first for the AFP
John Lyons spent nine hours in a room with six AFP officers — who were unfailingly polite and respectful — but who were doing something he believed attacked the very essence of journalism.
"If what is being suggested is that the law be changed so that is no longer in the future legally possible to execute a warrant on a third party's house, even if that third party is a journalist, even if the warrant pertains to the retrieval of information on a very, very serious criminal matter, then I'm not sure that I accept that that is the starting point for law reform in this area," he said.
Last year, Mr Porter directed Commonwealth prosecutors to get his office's consent before prosecuting a working journalist.
The Lawler review suggested the AFP adopt the same protocol, seeking the Attorney-General's advice before proceeding with an investigation involving a journalist.
It found the idea had merit, but came with a range of legal complexities.
Commissioner Kershaw said he supported the idea in principle, but "it's the how-to bit that is probably the more difficult component".
AFP not politicised, Commissioner says
In the wake of this week's Federal Court decision, ABC head of investigative journalism John Lyons contrasted the probe into the ABC with the now-abandoned investigation into Energy Minister Angus Taylor.
"After 18 months, we still have two journalists that face possible criminal charges," Mr Lyons said.
"I contrast this to Angus Taylor and what the AFP's treatment of him was — that case was over within weeks."
Earlier this month, the AFP decided to not pursue an investigation into Mr Taylor and his office, after the Minister used an allegedly forged document in a political attack against Sydney Lord Mayor Clover Moore.
But Commissioner Kershaw dismissed the comparison, saying the AFP was independent and the force had not been politicised.
"Minister Taylor's referral, from my information, was not relating to national security, [while] those other two matters are relating to national security," he said.
"I think there's a big difference between comparing those matters.
"As police … we follow the evidence and we gather evidence. I'm able to operate independently, as my officers are, and we haven't had any sort of political interference.
"We want to make sure that we focus on crimes, which is what we're here to do, enforce the law. And that's the lane that we need to stay in."
AFP warrants used to raid ABC valid, Federal Court rules
By Jamie McKinnellUpdated Mon at 6:23am
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VIDEO: Ruling 'should send a chill down all our citizens' spine' says ABC News boss (ABC News)
RELATED STORY: AFP wanted fingerprints of journalists behind ABC special forces investigation
RELATED STORY: Police leave ABC headquarters with files after hours-long raid over special forces stories
RELATED STORY: What do the AFP raids mean for journalists and their sources?
RELATED STORY: I live-tweeted the raids on the ABC — and it was a first for the AFP
A case over the validity of police warrants used to raid the ABC's Ultimo headquarters last year has been dismissed by the Federal Court of Australia.
Key points:
The story at the centre of the raid was based on leaked Defence documents
ABC Managing Director David Anderson said the raid was "attempt to intimidate journalists"
The ABC was ordered to pay the costs of other parties
In June, Australian Federal Police (AFP) officers searched ABC computer systems for files linked to a series of 2017 reports known as "The Afghan Files".
The reports covered allegations of unlawful killings by Australian soldiers in Afghanistan.
The ABC launched a challenge to the validity of the warrant, arguing it was "legally unreasonable" and included search terms which failed to create any meaningful limitation on the scope.
Federal Court Justice Wendy Abraham on Monday morning dismissed the case and ordered the ABC to pay the costs of the other parties.
The Afghan Files, by investigative journalists Dan Oakes and Sam Clark, were based on leaked Defence documents.
A whistleblower involved in the stories has, separately, faced legal proceedings.
In a statement, the ABC's managing director, David Anderson, said the raid was "an attempt to intimidate journalists for doing their jobs".
"This is at odds with our expectation that we live in an open and transparent society," he said.
"We are not saying journalists should be above the law, we're saying the public's right to know should be a factor that is taken into account — and legitimate journalism should not be criminalised."
PHOTO: ABC Managing Director David Anderson said the accuracy of the reports had never been challenged. (ABC News: Taryn Southcombe)
The AFP case argued the terms of the warrant clearly indicated its investigation was focused on alleged offences concerning the provision and receipt of the leaked documents.
In a 117-page judgment, Justice Wendy Abraham ruled the warrant's three conditions, when read in the context of the warrant as a whole, provided "sufficient particularity in the offence descriptions".
"The applicant's primary submission is based on a consideration of words and phrases in the conditions in isolation, devoid of their context," she wrote in the judgment.
"It is of no assistance to consider the breadth of individual words and phrases in the warrant in isolation, as material must satisfy all three conditions before it can be seized pursuant to the warrant."
VIDEO: John Lyons was disappointed with the ruling (ABC News)
The ABC argued the case on several grounds, but named the registrar who issued the warrant as the first respondent.
It argued the decision to approve the warrant was not authorised under the Crimes Act, having regard to the implied freedom of political communication.
Further, the ABC argued the warrant itself was too broad and included terms which failed to provide any meaningful limitation on its scope.
The ABC sought a declaration that the warrant was invalid.
In a statement, the AFP said it "respects the decision of the Federal Court".
"As the investigation remains ongoing it is not appropriate to comment further."
The AFP case argued the terms of the warrant clearly indicated its investigation was focused on alleged offences concerning the provision and receipt of the leaked documents.
In a 117-page judgment, Justice Wendy Abraham ruled the warrant's three conditions, when read in the context of the warrant as a whole, provided "sufficient particularity in the offence descriptions".
"The applicant's primary submission is based on a consideration of words and phrases in the conditions in isolation, devoid of their context," she wrote in the judgment.
"It is of no assistance to consider the breadth of individual words and phrases in the warrant in isolation, as material must satisfy all three conditions before it can be seized pursuant to the warrant."
VIDEO: John Lyons was disappointed with the ruling (ABC News)
The ABC argued the case on several grounds, but named the registrar who issued the warrant as the first respondent.
It argued the decision to approve the warrant was not authorised under the Crimes Act, having regard to the implied freedom of political communication.
Further, the ABC argued the warrant itself was too broad and included terms which failed to provide any meaningful limitation on its scope.
The ABC sought a declaration that the warrant was invalid.
In a statement, the AFP said it "respects the decision of the Federal Court".
"As the investigation remains ongoing it is not appropriate to comment further."
In October, ABC solicitor Michael Rippon told the court the warrant's terms included very general words such as "secret".
The court heard the AFP's executing officer told Mr Rippon, in the lead up to the raids, that he wanted them carried out in a fashion "amenable" to all parties.
Mr Rippon also recalled words to the effect of "we don't want any sensationalist headlines like AFP raids the ABC".
The material seized included 124 files on two USB sticks, some which were duplicates.
The AFP has previously given the court an undertaking that the material will remain sealed until the legal proceedings have been resolved.
The ABC had also sought an immediate injunction to return the seized material and prevent any part from accessing or copying it.
I live-tweeted the raids on the ABC — and it was a first for the AFP
John Lyons spent nine hours in a room with six AFP officers — who were unfailingly polite and respectful — but who were doing something he believed attacked the very essence of journalism.
ABC head of investigative journalism John Lyons said the decision was disappointing.
"It is a bad day for Australian journalism," he said.
"After 18 months, we still have two journalists that face possible criminal charges.
"I contrast this to Angus Taylor and what the AFP's treatment of him was, that case was over within weeks."
ABC news director Gaven Morris described the ruling as "a blow to the way Australians have access to information in their society and their democracy".
"Urgent law reform is clearly required and all the way through this process, it's clear that the way that journalists go about doing their role, the way public interest journalism is able to be undertaken in this country is a mess."
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