Australian Federal Police are investigating two ABC journalists and their source over a 2017 story about possible war crimes.
In July 2017 journalists Dan Oakes and Sam Clark published The Afghan Files, a seven-part series about Australian troops' conduct in Afghanistan. The story was based on documents leaked to the ABC and alleged, among other things, that special forces were being investigated for potential 'unlawful killings'.
The same day an investigation was referred to the Australian Federal Police (AFP) by the chief of the defence force.
Former defence lawyer David McBride has been charged with leaking to the ABC and to Fairfax Media. He has not denied leaking the documents, but maintains that he acted in the public interest by revealing illegal conduct.
In September 2018 police began negotiating with the ABC to access material relating to McBride without having to execute a search warrant and conduct a public raid, according to The Guardian. The ABC refused.
On Wednesday 5 June, the AFP entered the ABC’s Ultimo headquarters with a search warrant for Oakes and Clark, and head of the news division Gaven Morris. Police spent nine hours in the building and inspected thousands of documents, according to ABC head of investigative journalism John Lyons, who live-tweeted the raid.
Page one of warrant... pic.twitter.com/gRJAm8p60B
— John Lyons (@TheLyonsDen) June 5, 2019
Page 2 of warrant... pic.twitter.com/OfgaNmBER4
— John Lyons (@TheLyonsDen) June 5, 2019
Lyons drew particular attention to the powers granted under the warrant to 'add, copy, delete or alter' information. In an op-ed, he later wrote that the powers reminded him of George Orwell's 1984. The powers were added to the Crimes Act 1914 in 2018 and are modelled on similar powers given to the Australian Security Intelligence Organisation (ASIO) in 2014. The ability to alter or delete data is restricted to that which is necessary to carry out the search warrant.
Documents submitted by the ABC to the Federal Court say that the search warrant named journalist Dan Oakes, not McBride, as the target of investigation. ABC lawyers allege that the AFP conducted the search in order to gather evidence that Oakes may have committed offences including receiving stolen goods and unlawfully obtaining military information.
In March 2019 the AFP asked Qantas for his flight records.
David McBride has said that whistleblower protections are a sham, and that prosecuting him for revealing government misconduct is akin to the actions of totalitarian state.
“There’s no suggestion that I’m actually damaging national security. I think the government is damaging national security, and yet they’re treating me as if I’m a terrorist.”
McBride has been charged with one count of theft of Commonwealth property, three counts of breaching the Defence Act and one count of unauthorised disclosure of information. He has pleaded not guilty to all charges.
Documents were reviewed alongside ABC lawyers, then sealed for a period of two weeks. ABC lawyers are able to review them during this period and determine whether there are any privilege claims. Separately, they may decide to take out an injunction against the warrant.
Managing Director David Anderson said that the ABC "stands by its journalists, will protect its sources and continue to report without fear or favour on national security and intelligence issues when there is a clear public interest."
On Monday 24 June the ABC filed a legal challenge in the Federal Court of Australia. It will argue that the warrant breached the implied constitutional freedom of political communication. The ABC is also seeking an injunction to prevent the AFP from accessing the files.
The raid was widely condemned.
Marcus Strom, president of the Media Section of the Media, Entertainment and Arts Alliance, said in a statement that the raid was "nothing short of an attack on the public’s right to know."
“These raids are about intimidating journalists and media organisations because of their truth-telling. They are about more than hunting down whistleblowers that reveal what governments are secretly doing in our name, but also preventing the media from shining a light on the actions of government,” he said.
24 June: The ABC has filed a legal challenge.
27 June: Oakes appears to be the target, not McBride.
08 July: The AFP requested Oakes' flight records.
10-11 July 2017
- ABC publishes the Afghan Files
- AFP opens an investigation into the leak
- Defence lawyer David McBride arrested at Sydney Airport
- AFP begins negotiations over accessing documents, ABC refuses
7 March 2019
15 March 2019
31 May 2019
5 June 2019
24 June 2019
Oakes D and Clark S 2017. The Afghan Files. ABC News. 11 July 2017.
Callinan R 2019. Military lawyer on theft charge. The Australian. 28 February 2019.
Knaus C 2019. Whistleblower charged with exposing alleged military misconduct 'not afraid to go to jail'. The Guardian Australia. 7 March 2019.
Knowles L, Worthington E and Blumer C 2019. ABC raid: AFP leave Ultimo building with files after hours-long raid over Afghan Files stories. ABC News. 5 June 2019.
Lyons J 2019. Live-tweeting the AFP raid on the ABC. Twitter. 5 June 2019.
Caisley O 2019. I'll never take a plea deal: ADF whistleblower David McBride in court. The Australian. 13 June 2019.
Knowles L 2019. AFP officers who raided ABC looking for evidence reporter committed criminal offences, documents show. ABC News. 25 June 2019.
McMurtie C 2019. Why the ABC is going to court over police raids. ABC News. 26 June 2019.