Updated
Newly released documents show that another government
agency, as well as the Australian Federal Police, was involved in the
investigation that led to the raid on the ABC in June.
Key points:
- The AFP refused to release some of the documents because it said they related to an agency which is exempt from FOI
- Agencies which have complete exemption from the FOI Act include ASIO, Australian Signals Directorate and ASIS
- Senator Rex Patrick said the documents showed that the AFP was targeting journalists as much as whistleblowers
The documents, obtained under Freedom of Information, reveal that the AFP refused to release certain documents relating to the June 6 raid because it said they related to an agency of the Federal Government which is exempt from FOI.
In refusing to release certain material related to the investigation, the AFP revealed that documents requested for release contained "material relating to an agency which is exempt from the operations of the (FOI) Act."
Under the section cited by the AFP to justify not releasing the material — subsection 7 (1) of the FOI Act — agencies which have complete exemption include the Australian Security Intelligence Organisation (ASIO), the Australian Signals Directorate (ASD) and the Australian Secret Intelligence Service (ASIS).
The raid on the ABC's Ultimo headquarters was related to the Afghan Files, a series of stories, published in 2017, which detailed incidents where Australian soldiers in Afghanistan killed unarmed men and children.
The latest documents were released by the AFP in response to an FOI application by South Australian senator Rex Patrick.
Senator Patrick said the fact that subsection 7 (1) was used by the AFP to withhold material made it clear that in addition to the AFP another government agency was involved.
He said he believed that the other agency was either ASIO or the Australian Signals Directorate.
The involvement of another agency — particularly the Australian Signals Directorate — would raise the significance of the raids to a new level.
The primary role of the Australian Signals Directorate is to eavesdrop on conversations and monitor the communications of people of interest outside Australia.
The story which prompted one of the raids — on News Corp journalist Annika Smethurst — was about the push by some within the Federal Government to give ASD power to monitor the communications of Australians in Australia, which is currently prohibited by law.
The ABC asked the AFP this week which agency was referred to in its response to Senator Patrick.
A spokeswoman for the AFP said: "We don't have any comment while this investigation remains active and ongoing".
Senator Patrick called on the Federal Government to reveal who else was involved in the AFP investigation which led to the raid on the ABC.
He also said the documents proved that the recent AFP raids were targeting journalists as well as whistleblowers.
The ABC also put this statement to the AFP, but it chose not to comment.
AFP head given talking points on how to respond to questions about targeting journalists
The newly released documents also include "media talking points" for the then-acting head of the AFP, Neil Gaughan, for the press conference which he held on June 6 to discuss the raids.
The document advised Mr Gaughan what to say if asked whether he could rule out that journalists might be the subject of charges.
He was told to reply: "I'm not going to speculate on what future actions we may, or may not undertaking as part of these active investigations".
But the document said that "if pushed" he should say: "The reality is we have an investigation into the publication and disclosure of documents that are highly classified".
Mr Gaughan was also given advice by his media team on what to say if asked whether the ABC raid "would be considered an over-reaction given the AFP didn't respond to the same degree to the AWU leak".
"Each investigation is different," he was advised to say. "In the AWU matter, we did not have the grounds to obtain search warrants."While the AFP is continuing its investigation into leaks to three journalists — the ABC's Dan Oakes and Sam Clark and Ms Smethurst — it dropped an investigation into who leaked information to the media about an AFP raid on the offices of the Australian Workers Union in October 2017.
The then-federal minister for employment, Michaelia Cash, denied that her office was involved in the leak to the media.
Documents prove federal police were targeting journalists, senator says
The "talking points" advised Mr Gaughan that if he was asked why the office of Annika Smethurst in the press gallery in Canberra was not searched, instead of her home, he should reply: "During the investigation, we obtained information that led us to believe evidence may be located at the (Canberra) residence".
Mr Gaughan was advised that if asked about the part of the ABC warrant which gave the AFP power to "add, copy, delete or alter" material, he should say: "When interacting with a computer there is [sic] always unintended changes made during the identification and collection of digital information".
Senator Patrick told the ABC: "The documents released under FOI show that the AFP raids were targeting journalists as much as the sources of alleged leaks"."Despite the AFP's protestations that they support journalistic freedom, there can be no doubt that they intended to send a message to the press.
"Significantly the AFP chose not to obtain journalist warrants to search journalists' metadata, and instead proceeded direct to obtain search warrants from court authorities more likely to rubber-stamp their applications. In doing so the AFP deliberately avoided having to pay a highly qualified Public Interest Advocate to examine the merits or otherwise of their investigation and argue against the grant of a warrant.
"All these matters need to be examined not only by the current inquiry by the Parliamentary Joint Committee on Intelligence and Security, but also through rigorous questioning of the AFP and Home Affairs through the Senate estimates committee process. I, for one, have a long list of questions which I will seek answers to."
The Afghan Files
- #1: Leaked documents expose deadly secrets of Australian special forces
- #2: An interrogation, a shooting and no witnesses
- #3: What the documents reveal about killings of unarmed Afghans
- #4: The spy and the SAS soldier with a loaded Glock
- #5: Who is the enemy? Australia's secretive rules of engagement
- #6: What the f*** are you doing?: Chaos over severed hands
- #7: Relations between Australia's special forces units on 'knife edge'
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