The Australian federal police has pushed back against calls for greater safeguards on the issue of warrants that interfere with press freedom, arguing they would “fundamentally undermine” its investigations.
In a submission to the parliamentary inquiry triggered by high-profile raids on News Corp journalist Annika Smethurst and the headquarters of the ABC, the AFP defended its conduct and argued police independence and press freedom are not “inherently in conflict”.
The raids in June prompted concern that journalists could be charged for publishing protected information which formed the basis of reports of alleged unlawful killings by Australian troops in Afghanistan and plans to extend powers to spy on Australian citizens.
The AFP told the parliamentary joint committee on intelligence and security that leaks “can have adverse, even catastrophic, consequences”.
Those include revealing sensitive AFP methods and capabilities, exposing undercover officers and informants, and harming Australia’s reputation so foreign partners withhold information that may assist in protecting national security.
“A document does not need to be published in full or part for these risks to materialise,” it said, because unsecured storage of classified documents “creates a risk of the information being accessed by nefarious third parties, including foreign actors”.
Media companies including News Corp, Nine and the ABC have lobbied the Morrison government to unwind the criminalisation of journalism and add safeguards such as a right to front court and contest applications for search warrants against reporters.
The AFP warned that allowing parties who would be the subject of warrants to dispute them at the time of issuance “would undermine investigations by alerting suspects and providing opportunities to destroy evidence”.
The AFP suggested that raids could be challenged at other stages including through judicial review or asking courts to refuse to admit illegally obtained evidence.
The AFP did not refer directly to the June raids, but indirectly defended its actions by saying it was “normal for police powers to be exercised at a point in time when the full scope and impact of the criminal offending is unknown”.
That was because the impact of offending cannot be determined “purely from the contents of the document that has been published” and may require other facts including “the source of the information, the way it was handled before publication, and the intentions of the people involved are all relevant”.
“An informed decision about whether to prosecute cannot be made until the facts of a case are known, both inculpatory and exculpatory.”
The Australian Signals Directorate – which was the subject of the Smethurst report about a plan to extend its powers to spying on Australian citizens – also made a submission.
It argued that “some information must necessarily be protected to ensure ASD operations and capabilities remain effective in the performance of our legislated functions”.
The AFP explained its decisions to prioritise certain investigations were determined based on factors including the alleged impact of offending, likelihood of success of an investigation and alternatives to criminal investigation.
On Tuesday Guardian Australia reported the AFP dropped an investigation into the source of a leak on apparent security risks in the medevac legislation claiming over 200 public servants had access to parts of the document, even though only 11 had the final classified file,
The AFP also sought to clarify when the home affairs minister was informed of raids, explaining it does so for “significant, overt operational activity”.
“Permission to commence an investigation or undertake operational activity is not sought.
“The AFP’s standard practice is to notify the minister for home affairs when politically sensitive matters are referred to the AFP unless there is a conflict of interest or potential for perceived conflict of interest.”