Australian Broadcasting Corporation v Kane (No 2)
[2020] FCA 133
•17 February 2020
FEDERAL COURT OF AUSTRALIA
Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133
File number: NSD 989 of 2019 Judge: ABRAHAM J Date of judgment: 17 February 2020 Catchwords: ADMINISTRATIVE LAW – application for judicial review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and relief under s 39B of the Judiciary Act 1903 (Cth) regarding the issue of a search warrant under s 3E of the Crimes Act 1914 (Cth) (Crimes Act)
CRIMINAL LAW – practice and procedure – search warrant – where applicant claimed that the warrant was invalid as it did not comply with ss 3E(1), 3E(5)(a) and (c) of the Crimes Act – where the applicant claimed the conditions of the warrant did not meaningfully limit the scope of the search authorised by the warrant – interpretation of s 73A of the Defence Act 1903 (Cth)
CONSTITUTIONAL LAW – implied freedom of communication on governmental and political matters –where warrant issued pursuant to s 3E of the Crimes Act – where warrant authorised search for certain evidential material at the premises of the Australian Broadcasting Corporation – where validity of underlying offence provisions not challenged – whether the decision to issue this warrant was ultra vires having regard to the implied freedom of political communication
EVIDENCE – whether witness qualified to express opinion – where the applicant claimed journalist privilege under s 126K of the Evidence Act 1995 (Cth) extends to seizure of material under a search warrant issued under s 3E of the Crimes Act – where applicant claimed privilege in relation to specific documents
Legislation: Acts Interpretation Act 1901 (Cth) ss 13(2)(a), 15AA
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Crimes Act 1914 (Cth) ss 3(1), 3E, 3E(1), 3E(5)(a), 3E(5)(c), 3F, 70(1), 70(2)
Criminal Code Act 1899 (Qld) s 84
Criminal Code Act1995 (Cth) ss 131.1(1), 132.1, 132.1(1), 132.1(3)
Defence Act 1903 (Cth) Pt VII, ss 73A, 73A(1), 73A(2), 73A(1)(a), 73A(2)(a), 73F
Defence Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)
Evidence Act 1995 (Cth) ss 76(1), 79(1), 126K, 126K(2), 126K(2)(b), 131A, 131A(2)
Evidence Act 2008 (Vic) ss 126K, 126K(1), 131A(2)
Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth) Div 1A, ss 126A, 126B, 126C, 126D
Evidence Amendment (Journalists’ Privilege) Act 2011 (Cth) Div 1A, ss 126H, 131A
Judiciary Act 1903 (Cth) s 39B
National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) Sch 2, Pt 1, item 7
Safety of Defences Act 1890 (Qld) s 6
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385; (2012) 202 FCR 564
Ashby v Commonwealth of Australia (No 2) [2012] FCA 766; (2012) 203 FCR 440
Australian Broadcasting Corporation v Kane [2019] FCA 1716
Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52
Barbosa v Di Meglio [1999] NSWCA 307
Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
Beneficial Finance Corporation v Commissioner of the Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523
Branzburg v Hayes et al 408 US 665 (1972)
Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328
Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132
Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166
Clubb v Edwards; Preston v Avery [2019] HCA 11; (2019) 93 ALJR 448
Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Comcare v Banerji [2019] HCA 23; (2019) 93 ALJR 900
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113
Dunesky v Elder [1994] FCA 1569; (1994) 54 FCR 540
Gas & Fuel Corporation of Victoria v Comptroller of Stamps [1964] VR 617
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 93 ALJR 967
Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145
Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384
Hatfield v Health Insurance Commission [1987] FCA 286; (1987) 15 FCR 487
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Hinchcliffe v Commissioner of the Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Idoport Pty Ltd & Anor v National Australia Bank Ltd & ors [2001] NSWSC 123
Independent Commission Against Corruption v Cornwall (1993) 38 NSWLR 207
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178
Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Border Protection vSZVFW [2018] HCA 30; (2018) 92 ALJR 713
Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81
National Justice Compania Naviera SA v Prudential Assurance Co Ltd ("The Ikarian Reefer") [1993] 2 Lloyd's Rep 68
Nicholls v Director of Public Prosecutions for South Australia [1993] SASC 3964; (1993) 61 SASR 31
Notaras v Hugh [2003] NSWSC 167
John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346
Parker v Churchill [1986] FCA 88; (1986) 9 FCR 334
Peters v Attorney-General for New South Wales (1988) 16 NSWLR 24
Polley v Johnson [2015] NSWCA 256; (2015) 253 A Crim R 521
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Puglisi v Australian Fisheries Management Authority [1997] FCA 846; (1997) 148 ALR 393
R v Regos [1947] HCA 19; (1947) 74 CLR 613
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167
R v Tillett; Ex parte Newton (1969) 14 FLR 101
Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; (2012) 206 FCR 92
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Singh v Minister for Home Affairs [2019] FCAFC 3
State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181
Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175
Wong v Commissioner, Australian Federal Police [2014] FCA 443
Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1
Zhang v Commissioner, Australian Federal Police [2009] FCA 1170; (2009) 260 ALR 580
Zurcher, Chief of Police of Palo Alto et al v Stanford Dailyet al 436 US 547 (1978)
Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) Date of hearing: 28 October 2019, 29 October 2019 Registry: New South Wales Division: General Division National Practice Area: Federal Crime and Related Proceedings Category: Catchwords Number of paragraphs: 387 Counsel for the Applicant: Dr M Collins QC with Mr M Polden and Mr M Hosking Solicitor for the Applicant: Australian Broadcasting Corporation, Legal Department Counsel for the First Respondent: The First Respondent filed a submitting notice, save as to costs Counsel for the Second and Third Respondents: Mr N Williams SC with Ms C Winnett and Ms A Hammond Solicitor for the Second and Third Respondents: Australian Government Solicitor ORDERS
NSD 989 of 2019 BETWEEN: AUSTRALIAN BROADCASTING CORPORATION
Applicant
AND: MARTIN KANE
First Respondent
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Respondent
AGENT IAN BRUMBY OF THE AUSTRALIAN FEDERAL POLICE
Third Respondent
JUDGE:
ABRAHAM J
DATE OF ORDER:
17 February 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the costs of the first, second and third respondents as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
By its originating application (OA) dated 24 June 2019, as amended by leave, the applicant, the Australian Broadcasting Corporation (ABC), challenges a warrant issued pursuant to s 3E of the Crimes Act 1914 (Cth) (Crimes Act) (the warrant) on 3 June 2019, to Agent Ian Brumby of the Australian Federal Police (AFP). The warrant, which authorised a search for certain evidential material at the premises of the applicant, was executed on 5 June 2019 and material was seized.
The application seeks, inter alia, declarations that the search warrant is invalid and that the search and seizure of material pursuant to that warrant was unlawful, and that Agent Brumby and other AFP agents are not entitled to examine the material seized; an order that the material seized be returned; and an injunction restraining anyone at the AFP from dealing with the material seized in any way.
The application relied on nine grounds in support of the relief sought and whilst some of these grounds were ultimately not pressed, those that remained were categorised by the parties into four heads of challenge to the validity of the warrant: (1) that the proper construction of s 3E of the Crimes Act does not authorise the issue of a search warrant in circumstances that disproportionately burden the implied constitutional freedom of discussion of government and political matters (paragraph [18A] OA); (2) challenges on the face of the warrant, that it did not comply with ss 3E(1), 3E(5)(c) and 3E(5)(a) of the Crimes Act (paragraphs [19], [20] OA); (3) that the warrant misdescribed the offences in s 73A(1) and (2) of the Defence Act 1903 (Cth) (Defence Act) so as to amount to a failure to comply with ss 3E(1) and 3(5)(a) of the Crimes Act (paragraphs [21], [22] OA); and (4) that the decision by the AFP to seek the warrant and the Registrar’s decision to issue the warrant were legally unreasonable (paragraphs [23], [24] OA).
For the reasons given below each of the four heads of challenge fails.
Factual background
This chronology of events is taken from the Statement of Agreed Facts and Issues (Agreed Statement) filed by the parties and the evidence given in the proceedings.
On 11 July 2017, at approximately 6.02 am, the ABC published a series of online stories by ABC employees Mr Daniel Michael Oakes and Mr Sam Clark entitled “The Afghan Files” on its website (Afghan Files Stories). The contents of each of those online stories were updated later that same day, and again on 14 and 15 July 2017. The Afghan Files Stories reported on, inter alia, the operations of the Australian Defence Force (ADF) in Afghanistan. Preceding these stories, on 10 July 2017, the ABC broadcast an episode of its program 7.30 entitled “Afghan veteran raises disturbing allegations over the killing of civilians in Afghanistan” (7.30 Episode). Mr Oakes and Mr Clark were also the authors of this 7.30 Episode. The Afghan Files Stories made reference to documents described as “the Afghan Files”, being “[h]undreds of pages of secret defence force documents leaked to the ABC”, including documents with the security classification “SECRET” (to be used when compromise of the confidentiality of information could be expected to cause serious damage to national security, the national interest more broadly, or serious damage to organisations or individuals), and the caveat “AUSTEO” (meaning access permitted to the information was limited to Australian citizens who hold the appropriate security clearance). In preparing the Afghan Files Stories, Mr Oakes and Mr Clark relied on information provided to Mr Oakes by informants in circumstances where Mr Oakes had promised not to disclose the informants’ identity. The Afghan Files Stories stated that they were based upon information provided by such sources.
The AFP commenced an investigation in connection with the Afghan Files Story (AFP Investigation).
On 5 September 2018, Mr David William McBride was charged with theft contrary to s 131.1 (1) of the Criminal Code 1995 (Cth) (Criminal Code), which is said to relate to this AFP Investigation. On 30 October 2018, Mr McBride entered a plea of not guilty to this charge. Mr McBride was between 2005 and 2009 a commissioned officer in the Australian Army Reserve, and from 2009 to 2017 a commissioned officer in the Australian Regular Army. Between June 2008 and May 2016 Mr McBride held a security clearance which permitted him access to documents classified as SECRET.
On 13 September 2018, the AFP requested that three ABC employees, Mr Oakes, Mr Clarke and Mr Gavan Morris (Director of News, Analysis and Investigations) participate in interviews or assist with the AFP Investigation, which they refused on 4 October 2018.
On 24 January 2019, the AFP contacted the ABC about the possibility of conducting a search of the ABC’s premises. This involved oral and written communication between Agent Brumby and Mr Michael Rippon, solicitor employed by the ABC. This involved, inter alia, the AFP informing the ABC that they were at a point where they would seek a s 3E warrant to be served on the ABC, and requesting the ABC’s agreeance to a manner in which it might be executed to create minimal interference with the ABC. The AFP proposed, if the ABC agreed to provide assistance as required by a warrant, that a copy of the warrant be served on the ABC and they be given 2 to 3 weeks to gather the material and when they had done so, the AFP would attend its premises, provide the sworn warrant and obtain the material sought under it. The ABC declined the proposal.
On 7 March 2019, Mr McBride was charged with two further offences: unlawfully giving information as to defences, contrary to s 73A(1) of the Defence Act; and unlawfully disclosing a Commonwealth document contrary to s 70(1) of the Crimes Act.
On the same day, an article was published by the Canberra Times newspaper about the prosecution of Mr McBride which referred to him admitting to handing over documents to journalists, including at the ABC, but that he would defend what he had done on legal grounds. This was one of various media outlets that reported during March, May, June and July 2019 that Mr McBride made public statements concerning the allegations against him.
On 1 April 2019, the AFP requested that two ABC employees, Mr Oakes and Mr Clarke, provide copies of their fingerprints and palm prints.
On 30 May 2019, Mr McBride pleaded not guilty to the additional offences with which he is charged (as above at [11]) and on that day he was committed to stand trial in relation to the charges described at [8] and [11] (the McBride Proceedings).
On 31 May 2019, a further article was published by the Canberra Times newspaper about the prosecution of Mr McBride which again referred to him admitting to handing over documents to journalists, but defending what he had done on legal grounds.
On 3 June 2019, Registrar Kane, employed in the Local Court of New South Wales, issued the warrant on the application of Agent Brumby. The warrant authorised Agent Brumby, or a constable assisting him, to enter the ABC's premises in order to search for specified classes of things that there were reasonable grounds for suspecting would afford evidence as to the commission of identified offences by Mr McBride and Mr Oakes. The identified offences in relation to Mr McBride were those with which he had been charged. In relation to Mr Oakes the offences were unlawfully obtaining military information, contrary to s 73A(2) of the Defence Act, and dishonestly receiving stolen property from Mr McBride, contrary to s 132.1 of the Criminal Code.
On 4 June 2019, Agent Brumby emailed the ABC the first two conditions in the warrant. On 5 June 2019, at the request of the ABC, prior to the search, Agent Brumby emailed the third condition of the warrant.
On 5 June 2019, approximately one hour later, Agent Brumby executed the warrant on the premises of the ABC and material was seized pursuant to that warrant. During the execution of the warrant, legal representatives and counsel for the ABC were involved in discussions with the AFP. Counsel for the ABC stated at the outset that they wished to preserve its position as to the validity of the warrant. The warrant was carried out in one conference room where an ABC employee operated a computer (initially a laptop and then a larger screen), overseen by the AFP, predominately Agent Brumby. There were refinements to the searches made as the AFP eliminated a large group of documents as not satisfying the terms of the warrant. The ABC’s legal representatives were permitted to make observations about whether particular documents fell within the scope of the warrant. Documents possibly attracting legal professional privilege were placed in a separate electronic folder. At the conclusion, the materials the AFP proposed to seize were transferred to two USB sticks, which were then sealed. The ABC was given a printed list of the documents. One hundred and twenty four documents were seized, including duplicates. Apart from what occurred in the conference room, no other search was conducted. A mutual undertaking was agreed to the effect that the AFP would not disclose or act upon any seized materials for a certain period of time to permit review of the seized documents by the ABC for the purpose of it making particular claims in relation to the documents.
On 13 June 2019, the Guardian published an article about the McBride Proceedings, with statements in the article being attributed to Mr McBride, noting that Mr McBride did not dispute leaking the material but that he intended to argue he was acting on his duty to report illegal conduct by the government.
On 24 June 2019, the ABC instituted proceedings in this Court, supported by an affidavit of Michael Antony Rippon affirmed 24 June 2019, applying for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds of the challenge and the orders sought have, with leave of the Court, been amended on a number of occasions since the application was first filed. Attached to these reasons, marked as Annexure A is the version of the originating application which proceeded to hearing (the underlining representing amendments made since the original application).
On 18 July 2019, a video (and/or transcript of a video) was uploaded to the website of the Gold Coast Bulletin which was said to be an interview with Mr McBride in which he is quoted as stating: “I’ve already admitted I gave the documents…it was my duty to do so because the government was breaking the law and my duty is to the people of Australia, not to the government”.
On 8 August 2019 the Commonwealth Director of Public Prosecutions filed an indictment in the McBride Proceedings alleging five counts, with an amended indictment filed on 16 October 2019 (which did not relevantly change the charges).
On 18 December 2019, the Court was informed, by way of email from the parties to chambers, of the following:
Dear Associate
The respondents wish to draw the Court’s attention to the fact that the matter of R v David William McBride (SCC0127/19) has now been listed for a trial of 10 days, commencing on 2 March 2020.
The parties agree that the fact of the listing has no impact on the substantive issues to be determined in this proceeding. However, given the interconnection between the two proceedings, and the previous indications of likely trial dates that have been provided to the Court, the respondents considered that it was appropriate to inform her Honour of this development.
The applicant has also requested that we bring the following matters to the attention of the Court:
1.A joint statement of facts has been filed in the McBride proceeding, which has narrowed the issues in dispute in that proceeding, which the applicant understands to have the consequence that the alleged production of documents by Mr McBride to journalists will not be a matter contested at trial.
2.The matter of Smethurst & Anor v. Commissioner of Police & Anor proceeded for hearing before the High Court of Australia on 12 and 13 November 2019. During the hearing of that matter, part of the oral argument before the Court was focused on the requisite precision for the drafting of search warrants. A decision has not yet been handed down in that matter.
There has not been any suggestion or request that my decision be delayed pending the High Court judgment. I note that Smethurst & Anor v. Commissioner of Police & Anor (S196/2019) was a matter referred as a Special Case to the High Court and, while I am not aware of all the details, it relates to a different warrant, in different terms, involving a different offence provision. I am mindful that proceedings of this nature (a challenge to the validity of the issue of a search warrant which has been executed) involving criminal investigations should ordinarily be dealt with as expeditiously as appropriately possible.
Mr Kane, the first respondent in these proceedings, has filed a submitting appearance (save as to costs). The reference hereafter in these reasons to “the respondents’ submissions” only refers to the Commissioner of the AFP (the second respondent) and Agent Brumby (the third respondent).
Preliminary observations
Before considering the evidence led and the specific arguments and issues raised by this application, it is appropriate to make a number of general observations.
First, this application for judicial review alleging invalidity of the warrant based on the application for and issue of the search warrant, is to be determined as at the time of those events: Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 (Williams v Keelty) at [157] per Hely J. Events that occurred thereafter cannot bear on those issues. The applicant has not challenged the execution of the warrant. However, in the event that the applicant succeeded in establishing any of the grounds argued, the manner in which the warrant was executed could be relevant to the discretion as to whether the material seized should be returned: Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 (Caratti (No 2)) at [461] per Wigney J.
Second, the warrant is in the three condition format, as approved in Dunesky v Elder [1994] FCA 1569; (1994) 54 FCR 540 (Dunesky v Elder) at 557 per Lockhart, Beaumont and Hill JJ, by which the necessary threshold of the dual suspicions referred to in s 3E(1) of the Crimes Act, as to the presence of evidence at the premises sought to be searched having the capacity to prove the commission of an offence, are sought to be established by referring to: (1) things proposed to be searched for; (2) persons, entities or topics that those things relate to; and (3) offences that such things will afford evidence of: Australian Broadcasting Corporation v Kane [2019] FCA 1716 (ABC v Kane) at [13] per Bromwich J.
Relevantly the warrant is in the following terms:
Whereas I [Martin Kane] an issuing officer within the meaning of section 3E of the Crimes Act 1914, am satisfied by information on oath that there are reasonable grounds for suspecting that there is (or will within the next 72 hours be) at the premises located at:
[ABC’s premises]
evidential material, as defined in the Crimes Act 1914, which satisfies ALL of the following three conditions namely:
First condition: Things which are:
originals or copies of any one or more of the following, including any of them which are stored on a computer, or on a computer storage device, or on any other type of storage medium or storage device:
ŸHandwritten/digital notes
ŸDiary/ies
ŸCorrespondence - internal and external
ŸEmails and other electronic forms of messaging
ŸMinutes
ŸReports
ŸBriefing Documents
ŸAssessments
ŸGraphics, sketches, photographs or imagery/vision - drafts and final
ŸStory pitch
ŸPlanning logs
ŸBroadcast and online schedules
ŸRaw or unedited footage in its entirety
ŸJournalist's piece to camera
ŸScripts - drafts and finals including voice overs
ŸStory boards/plans
ŸStatus updates
ŸWebsite content
ŸDocuments classified as 'Secret'
Together with any manual, instruction, password or other thing that assists to gain access to or interpret or decode any of the above things.
Second condition: And which relate to any one or more of the following:
ŸDavid McBRIDE
ŸDaniel (Dan) OAKES
ŸSamuel (Sam) CLARK
ŸGaven MORRIS
ŸChris SMITH
ŸAustralian Broadcasting Corporation (ABC)
ŸNational Reporting Team
ŸAustralian Defence Force (ADF)
ŸDepartment of Defence
ŸThe Australian Army
ŸSpecial Forces
ŸSpecial Operations Command (SOCOMD)
ŸSpecial Operations Task Group (SOTG)
ŸSpecial Air Service Regiment (SASR)
Ÿ2nd Commando Company (2CDO)
ŸHeadquarters Joint Operations Command (HQJOC)
ŸOperation SLIPPER
ŸAfghanistan
ŸThe 7. 30 Report
ŸThe Afghan Files
ŸInside the Afghan Files
ŸRules of Engagement
ŸThe Ops Room
ŸGhost Three Zero
ŸChief of the Defence Force (CDF)
ŸActing (and/or) Secretary of Defence
ŸChief of Army (CA)
ŸChief of Joint Operations (CJOPS)
Ÿ afghan-files/8696182
Ÿ files/10156950722999988/
Ÿ over/8695400
Ÿ australian-special-forces/8466642
Ÿ killing-of-taliban-detainee-in-hut/8616602
Ÿ loaded-glock/8496608
Ÿ rules-of-engagement/8496672
Ÿ notorious-severed-hands-case/8496654
Ÿ specia1-forces-units-unhealthy/8496616
Third condition:
And as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following indictable offence(s) against the laws of the Commonwealth:
Between 14 April 2016 and 1 October 2016, David William McBride gave Daniel Michael Oakes military information, contrary to section 73A(l) of the Defence Act 1903 (Cth).
Between 14 April 2016 and 1 October 2016, Daniel Michael Oakes unlawfully obtained military information, contrary to section 73A(2) of the Defence Act 1903 (Cth) .
Between 1 March 2013 and 20 December 2014, David William McBride stole property belonging to the Commonwealth, contrary to section 131.1(1) of the Criminal Code Act 1995 (Cth).
About Between 14 April 2016 and 1 October 2016, Daniel Michael Oakes dishonestly received stolen property from David William McBride, knowing or believing that the property was stolen, contrary to section 132.1 of the Criminal Code Act 1995 (Cth).
About 1 May 2016, David William McBride unlawfully disclosed a fact or document which came into his knowledge by virtue of him being a Commonwealth officer, contrary to section 70(1) of the Crimes Act 1914 (Cth).
Third, it is clear from the third condition that the offences identified are reciprocal, they relate to the giving and receiving of information. The offences are not directed to the publication of the information, although the publication of the Afghan Files Stories may be capable of being evidence in proof of the offences. It follows, that the limited material before the Court, which includes what was published as the Afghan Files Stories, is not the source material or information the subject of the offences in the warrant. As noted above, from the publications, the Afghan files themselves are described as being comprised of hundreds of pages of secret defence documents. The third condition is directed to material that will afford evidence as to the commission of the identified offences. That concept encompasses material much broader than the documents provided.
Fourth, Mr McBride has identified himself in the media as a person who leaked documents to the ABC, the Sydney Morning Herald and Chris Masters. His identity is therefore no longer confidential. However, in so far as the applicant relied on the statements of Mr McBride (in particular in relation to the unreasonableness grounds), the rules of evidence ordinarily would not permit media reporting of an asserted fact to constitute admissible evidence of that fact, “let alone be a satisfactory means of determining the metes or bounds of any such admission or its capacity to prove any element of a criminal charge”: ABC v Kane at [9]. That the applicant states it now understands that the alleged production of documents by Mr McBride to journalists will not be a matter contested at his trial is not relevant to the question of the validity of the warrant. In any event, material as to which there are reasonable grounds for suspecting will afford evidence of the commission of the offences is plainly not confined to documents that were provided by him. It is not difficult to imagine the potential breadth of the material which might potentially fall within that category and which might address other aspects of the charges already laid. Moreover, the identified offences in the third condition are not confined to Mr McBride.
Fifth, prior to the hearing the applicant abandoned its challenge to the validity of s 73A(2) of the Defence Act (which was claim 1A and detailed in paragraph [22A] OA), which asserted that the provision was invalid because it infringed the implied freedom of political communication, at least in so far as it purported to apply to the conduct of Mr Oakes in relation to the information provided to him and publication of the Afghan Files Stories. The remaining arguments therefore must be considered in the context where the applicant is not contending that s 73A is invalid and, in particular, not contending that the implied freedom of political communication renders it invalid (or requires the provision to be read down), as previously alleged. This application proceeds on the basis that the provisions for each of the offences identified in the third condition are valid.
Finally, apart from a submission based on the interpretation of s 73A of the Defence Act, the applicant has not suggested that there was insufficient material before Registrar Kane to enable him to be satisfied of the condition in s 3E(1) that there were reasonable grounds for suspecting that there is, or will be within the next 72 hours, evidential material on the premises in relation to each of the identified offences. The offence provisions are valid, they do not need to be read down to save their validity. It follows that the alleged conduct, if there is an evidential basis to support it, is capable of satisfying those offence provisions.
Evidence
Agreed Statement
Helpfully, the matter largely proceeded by way of an Agreed Statement, which was supported by underlying material. I hasten to add that while the parties agreed the existence of those facts, their relevance, and if relevant their significance, was not agreed. As to relevance, just by way of example, the statements made by Acting Commissioner of the AFP on 6 June 2019 at a Press Conference addressing the warrant and its execution by the AFP, and the Ministerial Direction issued on 8 August 2019 (outlining the Government’s expectations for the AFP in relation to investigative action involving journalists/new media organisations in the context of an unauthorised disclosure of material) are not relevant to any of the issues to be decided. Contrary to the applicant’s submission that, for example, the Ministerial Direction illustrated “declaratory matters” that were “self-evident as at the date of execution of the warrant and were, or ought to have been, self-evident to those who made the decision to seek and issue them” they are statements made after the warrant was sought and issued. They have no relevance to the question of the validity of those decisions at that point in time. Similarly, for the reasons outlined above at [31], the purported admissions of Mr McBride have no relevance to that issue.
It is unnecessary to recite all the details of the Agreed Statement, suffice to say the topics covered the ADF, the ABC, the publications referred to as the Afghan Files Stories, the McBride Proceedings, the AFP Investigation, the warrant, and the protection of sensitive defence information.
Given the extent of the applicant’s reliance on it, I note in particular, the details in the Agreed Statement concerning the ABC, its Code of Practice and various other ABC policy documents, which set out principles and standards for the ABC and its employees, and the consequences of failing to comply. The Agreed Statement details, amongst other things, that:
Journalists rely on information provided to them by sources who have provided that information on [the] condition that their identity will be kept confidential.
…
In some circumstances, if the identity of a source of significant information were to be revealed, the source may be at risk of various types of harm to reputation, livelihood, property or person. Those close to the source, such as family members, may also be at risk. If sources who reveal information that serves a significant public interest face ramifications of those or other kinds, they and other actual or potential sources may be deterred from providing information in future.
Among other things, an ABC Guidance Note entitled “Attribution/Anonymity of Sources” states that a basic rule of journalism is to protect the identity of sources when committed to do so; that any failure to uphold the rule can result in serious potential costs in loss of trust and reduced information flow, both from the source affected and from other potential sources who may be deterred; and sets out ways in which journalists employed by the ABC must strive to maintain the protection of confidential sources. Reference is also made to the Media, Entertainment and Arts Alliance (MEAA) and a Journalist Code of Ethics, the MEAA Code of Ethics (MEAA Code), it has adopted. Among other things, the current version of the MEAA Code: requires journalists who are members of the MEAA to apply the following standard: “Aim to attribute information to its source. 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”; and contains a “Guidance Clause”, which states: “Basic values often need interpretation and sometimes come into conflict. Ethical journalism requires conscientious decision-making in context. Only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden”.
As noted above, the Afghan files were comprised of a number of ADF documents including documents security classified as SECRET, and with the caveat AUSTEO. The process by which such classifications are determined, the circumstances in which they are so marked, their meaning and the consequences of the compromise of the information are detailed in the Agreed Statement. This includes the following:
Unauthorised disclosure of defence information contrary to the requirements of the information security framework established by the Commonwealth under the PSPF and Defence under the DSM (defence information disclosures) may undermine the ADF’s ability to respond to threats and conduct successful missions. Disclosing defence information such as operational plans, techniques, tactics and procedures may diminish the effectiveness of those resources. Disclosure of such information may also expose Defence personnel to an elevated risk of harm.
Defence information disclosures may also harm Australia’s relationships with allies and coalition members. A demonstrated inability to maintain the secrecy of certain types of defence information may reduce the willingness of those countries to share information with Australia.
A reduction in information-sharing by Australia’s military partners may hinder the ADF’s ability to plan for and respond to threats to Australia’s national security, to defend Australia from armed attacks, and/or to participate effectively in joint operations.
In determining whether a defence information disclosure may have the effects described at [111] to [113] above, it is relevant to consider the nature of the information and the circumstances of disclosure.
Similarly, the Agreed Statement specifically addressed the Rules of Engagement (ROEs) which were described as directives issued to the ADF by the Chief of the ADF, in consultation with the Australian Government which regulate the use of force and activities connected with the use of force by the ADF. The unauthorised disclosure of ROEs for operations in which Australia has a current involvement or for concluded operations which current ROEs substantially replicate, contrary to the requirements of the information security framework established by the Commonwealth under the Protective Security Policy Framework and the ADF under the Defence Security Manual v 5, may increase the likelihood that the ADF’s adversaries will ascertain the precise terms of current ROEs. The Agreed Statement noted that if information about how ADF forces will operate during a mission is available to an adversary, that adversary may be more effective in combat with the ADF, as it may be able to adjust its strategy and operations in light of that information. For these reasons, the Agreed Statement outlined that the disclosure of ROEs may: diminish the effectiveness of ADF tactics, techniques and operations; impede the success of ADF missions; may undermine the ADF’s defensive capacity abroad and in Australian territory; and/or physically endanger ADF members, increasing their risk of injury or death. The Agreed Statement notes that in determining whether a disclosure may have those effects, it is relevant to consider the nature of the information and the circumstances of disclosure.
Additional evidence
In addition to the Agreed Statement, there were three witnesses relied on by the parties. At the hearing the applicant relied on two witnesses, Mr Rippon, solicitor for the applicant and Dr Matthew Ricketson, Professor of Communication at Deakin University, and the respondents relied on Lieutenant General Gregory Charles Bilton AM CSC, Chief of Joint Operations, ADF.
Applicant’s evidence
Mr Rippon affirmed an affidavit on 24 September 2019 which primarily dealt with issues of legal professional privilege and source protection claims. At the hearing, Mr Rippon’s affidavit was read, subject to three limitations agreed by the parties. The legal profession privilege issues referred to in the affidavit were resolved prior to the hearing, and the source protection claims, which are the subject of the last ground in this application, have been reduced to 4 documents. That ground will be addressed later in the judgment. Mr Rippon was cross-examined on the execution of the warrant and gave evidence which included that referred to in paragraphs [10], [17] and [18] above.
During the course of Mr Rippon’s cross-examination some documents were tendered which included two emails received by him from Agent Brumby (referred to above in paragraph [17]) and two tweets sent by Mr John Lyons, an ABC employee who was present that day, in relation to the execution of the warrant on June 2019.
Professor Ricketson provided an expert report, dated 24 September 2019, which primarily dealt with journalists’ obligations in protecting confidential sources (particularly in the context of the MEAA Code and the purported impacts of a failure to do so). In particular, the report included opinions about the importance of maintaining source anonymity in the case of informants who work within institutions which deem material to be secret, including military and intelligence services.
As will be explained in greater detail below, the respondents objected to the evidence of Professor Ricketson on the basis that it was irrelevant to this application. This is on the basis that the applicant had “abandoned the constitutional challenge”. While the respondents accepted that the topics of evidence in his report are matters to which admissible evidence might go, they challenged that Professor Ricketson’s report addressed those issues in any admissible manner.
Given, as the respondents contended, even if I accepted their threshold argument in relation to ground 1 it would nonetheless be necessary to address the alternate argument against the possibility that was not the correct position, which may require the determination of factual questions, I provisionally admitted Professor Ricketson’s evidence. In essence, the objections were that: (1) the report does not set out relevant expertise to express the opinion he does (at paragraphs [21], [22] of his report); (2) the recitation of various aspects of the MEAA Code is inaccurate and the document speaks for itself; (3) that the opinions expressed purport to relate to military and intelligence services without any basis identified for his expertise in such matters or basis of the opinion expressed; and (4) that the report is speculative, and based on unspecified hearsay assertions of conversations with unidentified journalists.
The applicant called Professor Ricketson and tendered his report. The aspects of the report principally relied on appear to be as follows (with any errors in the original):
11. The requirement of journalists to protect the identity of confidential sources of information is an important element of the MEAA Code of Ethics, which is available online at g/meaa-medi a/code-of-ethics/. The code applies to journalism in all the news media, including print, broadcast or online. The Walkley awards are the most prestigious prizes in Australian journalism; those entering them are required to affirm that they have abided by the MEAA Code of Ethics in their work.
12. Clause three of the MEAA Code requires that journalists:
Aim to attribute information to its source. 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.
13. The current drafting of this clause is more nuanced than was the original code, which was drafted in 1944. At that stage the Code simply required that a journalist respect all confidences received by him in the course of his calling. The modern clause requires that journalists think carefully before agreeing to keep a source's identify confidential. This change came about because of a recognition that, on the face of it, failing to disclose the identity of a source is contrary to the free flow of information that is central to the role of journalism.
14. The granting of anonymity to sources can be abused as it enables sources to make allegations about people to which that they do not need to put their name. That is why the MEAA, following a review of the code of ethics in the 1990s, considered it necessary to account for and mitigate against the inherent tension between openness and secrecy in the use of confidential sources, as well as addressing the possibility of sources acting in bad faith.
15. The current drafting of the code requires a journalist to consider whether the free flow of information can be achieved without recourse to a source who is unwilling to speak on the record for publication or broadcast. It further requires a journalist consider the source's motives for disclosure before promising to keep their identity confidential.
16. This means that by the time anonymity has been promised the journalist has already made a judgement call that they cannot obtain disclosure without keeping the source's identity secret. In my experience journalists do consider this hurdle imposed by the modern form of the Code. By definition, then, it is reasonable to assume that those disclosures would not have been made without the promise of anonymity.
17. Once the journalist makes the agreement, though, the Code requires them to keep it. This requirement applies even if that means refusing to reveal a source's identity in court proceedings up to and including non-compliance with an order to reveal a source's identity. In my experience, this is a commitment that is taken very seriously and is central to the personal ethical code of the many journalists whose work I have studied and with whom I have discussed the issue over the course of my career.
18. The journalist's agreement to keep a source's identity confidential, even if that means going to gaol for contempt of court, is a powerful tool for journalists aiming to win the trust of source who themselves could be at risk of legal action or losing their livelihood (or in extreme cases their lives) if their identity was known to the people and institutions about whom they disclose information.
19. In the case of informants who are the victims of crime or abuse who work up the courage to disclose information about their abusers, in my experience journalists reporting on these issues consider that it is particularly important that the trust informants show to a journalist is honoured. This is because the journalists consider that to do otherwise would compound the damage that has already been done to these informants' ability to place their trust in others.
20. In the case of informants who work within institutions, including military and intelligence services, and disclose information about failures, real or perceived, in their institutions, in my experience journalists reporting on these issues consider that it is similarly important that the trust informants show to a journalist is honoured. This is because not only of the courage that is required for informants to speak out about problems in their institution but of the consequences of speaking out, which may include being ostracised, demoted, forced to resign or charged with an offence.
21. It is my opinion, based on the many years I have been observing, studying and writing about the theory and practice of journalism, that if these types of informants became aware that a journalist's promise of confidentiality was unreliable, there would be significantly fewer disclosures by victims and other witnesses of crime and abuse.
22. It is my opinion too that the discovery, or the risk of discovery, of an informant's identity through the seizure of documents under a search warrant would have a chilling effect on the willingness of prospective informants to come forward because of the penalties applied to those found to have disclosed to a journalist information that has been deemed by an institution, including military and intelligence services, to be secret. These penalties are included in a number of pieces of legislation.
23. There is an inherent and legitimate tension between freedom of the press and national security. Freedom of the press is a principle exercised by the news media on behalf of the general public, and national security is a principle exercised by governments and law enforcement agencies on behalf of the general public. The tension arises from weighing the merits of these two principles, both of which are valued in the body politic. One does not always outweigh the other but it is difficult to discern which one does, and in what circumstances. There is a need to weigh the public interest importance of the journalism against the importance, or the imminence, of the threat to national security.
24. It is my opinion, based on study and experience, that there have been instances of the news media producing journalism that is not in the public interest, but is instead irresponsible or sensationalist or unethical. It is equally possible to find instances of governments using national security to cloak actions and behaviours that are incompetent or corrupt or illegal. It is a difficult task for parliaments to frame laws that ensure those in positions of power, whether in the news media or in government or law enforcement agencies, are held to account for the actions they take on behalf of the public.
25. It is more difficult when there has been a proliferation in the past two decades of national security laws that preclude almost any public scrutiny and which impose significant penalties on those working within institutions who feel impelled to disclose failings, real or perceived, of the institutions. It is important that there is balance between the strength of laws that protect national security and those that protect freedom of the press and the whistleblowers who make disclosures to the press.
Following the evidence having been provisionally admitted, Professor Ricketson was cross-examined.
While Professor Ricketson stated that all journalists were eligible to be a member of the MEAA, although they might choose not to be, he accepted newspaper editors, and newsroom chiefs are not eligible. While he was unaware of the percentage of working journalists who are members, he gave evidence that he understood that the MEAA still has substantial reach in most major news organisations in this country, and among freelance journalists of whom there is a growing number, ultimately accepting the proposition that those who choose to join the MEAA, are to a degree, a self-selecting group.
Professor Ricketson accepted that the standards that the MEAA Code sets out are subject to a guidance clause, and that the standards can be overridden in particular circumstances. The judgment is that of an individual journalist.
In relation to the enforcement of the MEAA Code, Professor Ricketson gave evidence that since the new journalist code was adopted in 1999, only three MEAA members have been censured or rebuked under the MEAA Code, and no member has been expelled from the MEAA for almost 40 years. Professor Ricketson added that the MEAA is a member of the Australian Press Council, as are most major news organisations in this country, and to an extent it relies on the processes that the Australian Press Council engages to deal with complaints from members of the public and others about journalism that is produced.
Professor Ricketson accepted that, as far as he was aware, decisions in disciplinary matters of the MEAA or summaries of its decisions under the MEAA Code, are not published on the MEAA website. He accepted that the public knowledge of whether, or to what extent, the rules are being enforced is limited by that. Professor Ricketson was also asked if it is a fair criticism, made in the Finkelstein Report, that the complaints process remains largely ineffective, to which he responded that it was a contestable criticism and added there has been “substantial improvement” since that report which was six or seven years old.
In his report, Professor Ricketson said that granting of anonymity to sources can be abused, as it enables sources to make secret allegations. During cross-examination, he accepted that a problem with secret sources is that the source may have an axe to grind and so may leak material selectively; the source may have partial knowledge and be blind to the complexities of the matter on which they’re providing information; the source may actually be acting in bad faith; and secrecy can allow a source to discredit people with little or no accountability. He accepted that journalists routinely grant anonymity to sources far wider than whistleblowers. He accepted that many secret source leaks are, in substance, disguised government media leaks dropped in the lap of selected journalists, and in some of those cases, there might be a greater public interest in knowing who leaked the report than the substance of the report. He accepted that occasions when a journalist has leaked information ranges from the useful through to outright lies.
He accepted that under the MEAA Code the default or standard position is that sources should be attributed but every day “on all manner of stories”, journalists grant sources anonymity. When asked whether journalists often have to grant anonymity before they know what the information is that is to be disclosed, he responded that he would not know for sure, and “not necessarily in my experience and observation”.
He accepted that journalists need to think carefully “before granting anonymity to any old source”. When asked whether it was “very common practice in [the] newsroom, doing just that. That is, granting anonymity to any old source is very common practice in newsrooms today?”, he responded “[w]ithin the context of the great range of the kinds of stories that journalists engage in, some of which are very serious and are matters of national public importance of the kind that are the subject of these – these – this matter, I should say, and others which are the proverbial cat up a tree story, which are of little moment and happen many, many times in many, many newsrooms every day”.
He accepted that sometimes, protecting a source at all costs may promote misleading of the public. He accepted that it was the view of some (and he identified Chris Masters as an example) that where a source has deliberately misled a journalist, it might be appropriate for the journalist not to maintain the confidence. He accepted that Mr Masters, from his observation and that of many others, was highly ethical in his practice of journalism and a highly successful investigative journalist. Professor Ricketson was asked about Mr Masters’ approach to sources and how it was said to be narrower than that of the MEAA Code referring to a book written by him in 2002.
He accepted that sometimes secret sources leak information to silence a whistleblower or critic. He accepted that sometimes journalists fabricate information and claim that the identity of the source can be known only to the journalist and must be kept anonymous, occurs but “pretty rarely”. The respondents drew Professor Ricketson’s attention to an ABC guidance note that addressed this issue, and Professor Ricketson accepted that assurances given in relation to anonymity were not seen by the ABC as an absolute obligation as “there’s a balancing of both interests and of needs”.
Professor Ricketson accepted that he had not published stories that had been given to him by secret sources in the military or the intelligence services; and the military and the intelligence services had not been an area of his journalistic endeavour. When asked about whether he had conducted any interviews with informants about the willingness of secret informants to come forward without a promise of anonymity, he responded that he had “more often interviewed journalists about their practice”. While he referred to his PhD thesis and that he conducted some “semi-structured interviews” with investigative journalists, he accepted that there is nothing in his thesis about interviews that he has conducted concerning the willingness of informants in the military and intelligence services to come forward without a promise of anonymity. Professor Ricketson also accepted that he has not conducted any surveys of investigative journalists about their dealings with secret sources.
Professor Ricketson was reluctant to accept the proposition that “if a journalist is being truthful with a source, no journalist can ever promise secrecy to a source” but he accepted a court could decide to compel disclosure of the source’s identity under s 126K of the Evidence Act 1995 (Cth) (Evidence Act) and that the Independent Commission Against Corruption (ICAC) could compel disclosure of the source’s identity. While noting that journalists have resisted directions by ICAC to reveal their sources, he accepted that sometimes journalists do reveal the source to ICAC although he could only think of one example in the last decade or so, and he was not aware of any disciplinary proceedings that had been bought against that person. He was also asked about the power to compel the disclosure of documents held by the Australian Competition and Consumer Commission, and the Australian Taxation Office, but said that it was not “an area of expertise” of his but said that “once [journalists] have given a source a promise to keep the source’s identity confidential, they take that seriously up to and including resisting compulsion by various bodies for them to reveal their sources”.
Professor Ricketson was cross-examined about his involvement with the Australian Press Council and the MEAA. He gave evidence that he was appointed to the Australian Press Council in early 2016 and accepted that there was some criticism of his appointment with review of the role that he had had with the Finkelstein Inquiry, and that as a precondition to his appointment he agreed that he would represent the MEAA’s position on all policy questions at the Australian Press Council, and that to the best of his knowledge and recollection he had done so. Professor Ricketson accepted that the MEAA has a policy position on the search warrant that was executed on the ABC, and a statement made on behalf of the Australian Press Council was tendered and brought to his attention. A tweet, written by Professor Ricketson about the execution of the warrant on 5 June 2019 was also tendered which also referred to a Journalism Education and Research Association of Australia (JERAA) statement on the same issue: “JERAA’s statement on AFP raids jeerra.org.au. The results of govts appeasing public anxiety about national security root causes & throw civil liberties under an (armoured) bus”. The respondents put to Professor Ricketson that these statements called into question his independence in these proceedings and suggested that he was expressing firm views, both through the Australian Press Council and in his tweeting of the JERAA statement. Professor Ricketson took issue with this proposition, stating that he “wear[s] a number of hats” and that, for example, the tweet represented a combination of the statement by JERAA and his own opinion.
During the course of Professor Ricketson’s evidence some documents were tendered which included, two publications authored by him, a tweet sent by him, the MEAA, Australian Press Council, and JERAA media statements in relation to the execution of the warrants executed in June 2019.
One document put to Professor Ricketson in cross-examination was a printout ostensibly from the ABC news website which was an article dated December 2017 entitled “ICAC probe forces journalist to reveal source for story”. Professor Ricketson was asked (in the context of having been previously asked about occasions when sources have been revealed) whether he was aware of this incident, to which he replied he was not aware of it. The respondents sought to tender the news item. On the basis that Professor Ricketson was not aware of the incident and therefore, it was being relied on for a hearsay purpose, the applicant objected to the tender of the ABC news story. The article was being tendered to rely on the truth of the facts asserted therein. It was being relied on for a hearsay purpose and was thus inadmissible. It is not admitted in these proceedings.
The respondents’ objections
As noted above, the respondents objected to the entire report contending it was irrelevant on the basis that the applicant had abandoned its challenge to the validity of s 73A of the Defence Act. As the “constitutional challenge [had] now been dropped,” it was submitted that the purported relevance of the report was unclear.
The applicant contended that it was relevant to the argument in paragraph [18A] of the OA which alleges that the decision to issue the warrant was ultra vires having regard to a number of factors including “the importance of the protection of sources”, “the public interest in investigative journalism” and “the implied Constitutional freedom for the reasonable discussion of government and political matters”. The applicant contended that this ground was “further elucidated” in the submissions of both parties, and highlighted a number of passages in both submissions to emphasise that “the argument is alive”, and so too, the relevance of the report.
In addition to the relevance argument, the respondents challenged specific aspects of the report, most notably, that the applicant had not established that Professor Ricketson was qualified to give the opinion which is at the crux of his report at paragraphs [21] and [22] (as extracted above at paragraph [46]), that is, the purported “chilling effect” that the risk of disclosing sources “would have” on prospective informants who work within institutions, including military and intelligence services.
The applicant, inter alia, submitted that the respondents were cavilling with Professor Ricketson’s evidence when the relevance of it related to what it submitted was a “wholly uncontroversial proposition” (referring to John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346 (Cojuangco) at [12] per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ), that information will be more readily supplied to journalists, of the kind which is in issue in this case, where confidentiality is protected, and that this “free flow of information” is a “vital ingredient in the investigative journalism which is such an important feature of our society”. I refer to the applicant’s submission in relation to Cojuangco in more detail below. Suffice to say, that proposition from Cojuangco may be accepted. If that was the relevance of Professor Ricketson’s evidence, and it purported to say no more than that proposition, one might think his evidence would have been unnecessary.
It is therefore more appropriate to consider the issue of relevance of his evidence and, if relevant, the arguments as to his qualification to express the opinions he did, in considering the law as to source protection (see [182]-[245] below), which is relevant to the applicant’s argument in respect to grounds 1, 6, 7 and 9.
Respondents’ evidence
The respondents read the affidavit of Lieutenant General Bilton AM CSC, sworn 27 September 2019, which addressed the ROEs and, amongst other things, why they are secretive, and are classified (with one exception) at no less than SECRET. This included, (without disclosing the content of any particular ROE), the purpose, use and formulation of the rules and the consequences of disclosure of current and past ROEs. Lieutenant General Bilton was not required for cross-examination.
Lieutenant General Bilton addressed the extent to which ROEs are evolutionary although the precise extent of consistency or similarity is a matter of military sensitivity therefore, one appropriately not dealt with. He detailed the purpose of ROEs, as being: (1) to operate to ensure force protection; and (2) to ensure the actions of the ADF remain lawful and consistent with the mandate of the Australian Government, thereby retaining legitimacy. He explained the consequences if all of a current set of rules were disclosed and the way in which adversaries could identify vulnerabilities and deploy their own tactics, techniques and procedures for testing and operational advantage. He explained why these matters remain of ongoing sensitivity and that allowing an enemy to obtain an operational advantage in this way may have particular consequences which he identifies. He addressed whether the release of part of current rules would have the same effect depends on which part, noting that the release of operational components of ROEs would likely have adverse effects, particularly if those parts revealed limitations on the ADF’s use of force or its tactics, techniques and procedures. He explained how innocuous fragments might be put together through mosaic analysis. He described having experience with adversaries testing their knowledge of ADF tactics in this way, and explained that in his experience, adversaries do proactively seek to aggregate bits of information in order to build an understanding of such tactics. He explained that it is difficult to assess the likelihood of the consequences he had identified, but said the likelihood was real. He said the consequences are very significant for the ADF’s ability to carry out its function, and detailed that those consequences may include the ADF being undermined in its ability to carry out an operation as well as soldiers, sailors and airmen/women being injured and killed. He explained why the possible consequences are the same for the disclosure of non-current ROEs, and noted that if it were the case that ROEs for contingencies were acquired by an adversary before the ADF enacted the ROEs, it would likely result in even graver consequences than those he had previously detailed.
Relevant legislation
The warrant was issued pursuant to s 3E of the Crimes Act which relevantly states:
3E When search warrants can be issued
(1) An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
…
(5) If an issuing officer issues a warrant, the officer is to state in the warrant:
(a) the offence to which the warrant relates; and
(b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
(c) the kinds of evidential material that are to be searched for under the warrant; and
(d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and
(e) the time at which the warrant expires (see subsection (5A)); and
(f) whether the warrant may be executed at any time or only during particular hours.
The offence provision for the first two offences in the third condition of the warrant, s 73A of Defence Act is contained in “Part VII - Offences” of that Act and is in the following terms:
73A Unlawfully giving or obtaining information as to defences
(1) A person who is a member of the Defence Force or a person appointed or engaged under the Public Service Act 1999 commits an offence if:
(a) the person communicates to any other person any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information; and
(b) the communication is not in the course of the first‑mentioned person’s official duty.
(2) A person commits an offence if:
(a) the person obtains any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or air force aerodrome or establishment, or to any of the defences of the Commonwealth or any other naval, military or air force information; and
(b) that conduct is unlawful.
The maximum penalty for the offences under s 73A of the Defence Act is life imprisonment, an unlimited fine or both: Defence Act, s 73F.
Most, although not all of the applicant’s challenges to the warrant, relate only to the first two offences in the third condition of the warrant.
Suffice to say that the third and fourth offences, conduct contrary to s 131.1(1) and s 132.1 of the Criminal Code, relate to the offences of theft and receiving respectively. Section 131.1(1) prescribes an offence consisting of the dishonest appropriation of property belonging to a Commonwealth entity with the intention of permanently depriving the owner of that property. Section 132.1 creates the offence which a person commits by dishonestly receiving stolen property knowing or believing the property to be stolen. By force of the definition of “stolen property” in s 132.1(3), the provision only applies where the relevant property is (or was when previously received) property belonging to a Commonwealth entity, or proceeds of sale or property exchanged for such property. The maximum penalty for each offence is imprisonment for 10 years: ss 131.1(1), 132.1(1).
The final offence in the third condition of the warrant, s 70(1) of the Crimes Act, provides that a Commonwealth officer commits an offence if he or she publishes or communicates, except to some person to whom he or she is authorised to publish or communicate it, any fact or document coming into his or her knowledge or possession by virtue of being a Commonwealth officer and which it is his or her duty not to disclose. The offence is punishable by imprisonment for 2 years: s 70(2). I note that this provision was repealed in 2018 by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) however, that repeal only has effect for conduct occurring on or after the commencement of that amending legislation: National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth), Sch 2, Pt 1, item 7.
Legal principles relevant to search warrants
The principles relevant to construing statutes relating to the issue and execution of search warrants are well established, and summarised by the Full Court (Logan, Rangiah and Bromwich JJ) in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 (Caratti) at [21]-[49].
As the applicants challenge the issue of the warrant they bear the onus to make good that challenge: Williams v Keelty at [235]-[236].
Construction of statutes that authorise search warrants must begin with “the ordinary meaning of the words considered according to their context and the legislative purpose”: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 (Hart) at [64]. As the Full Court (Hill, Hely and Conti JJ) in Hart observed at [68], “effect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences”, such that a construction giving effect to “operational realities” is to be preferred to “fine legal judgments in the issue and/or execution” of search warrants.
I note the observations of the Full Court in Caratti at [34] that:
In all challenges to the validity of the issue of a search warrant, the usual restraints on judicial review intervention will apply. This includes, most importantly, the principle that the decision manifested in the search warrant issued must be read beneficially, and not with an eye keenly attuned to the perception of error: Minister for Immigration And Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. However, application of that principle must accommodate the purposes of a search warrant in informing both those executing it and occupiers as to the scope of the search that is authorised. The scope of a search warrant may be far from precise given that it is issued for an investigative purpose, based upon the low threshold of “suspicion” being met. All that really means is that an error or misdescription must be shown to be material to the purposes of a search warrant. However when it comes to mismatches between the information and the search warrant, that feature must not be approached with undue technicality or any requirement for excessive precision. Practical considerations must always be kept steadily in mind: Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 (Baker v Campbell) at 83.
The Full Court in Caratti at [37]-[39] also summarised key principles from Beneficial Finance Corporation v Commissioner of the Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523 (Beneficial Finance) which focussed on the sufficiency on the face of the warrant in so far as it relates to the description of the suspected offence. First, the statement of the offence in a search warrant need not be made with the precision of an indictment. The purpose of the statement of the offence is not to define the issues for trial, rather it is to set boundaries to the area of search: Beneficial Finance at 533; State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 (Corbett) at [99]. Second, the line as to what may, or may not be seized, cannot be precisely drawn as a search warrant is not concerned with what is known, but with what there is reasonable grounds for suspecting: Beneficial Finance at 534. Third, the particularity in an offence description is directed to ensuring that the occupier knows the object of the search and can therefore make an assessment of the material likely to be relevant: Beneficial Finance at 539. Fourth, at the stage a search warrant is granted, it may not be known what particular offences may have been committed and therefore it is sufficient that the warrant specifies the suspected offences in a way so as to enable the executing officer and those assisting to decide if the things seized come within the terms of the warrant: Beneficial Finance at 539. Fifth, the issue of the sufficiency of an offence description should be viewed broadly, having regard to the terms of the warrant in the circumstances of each case. It should be answered in accordance with the principle that a search warrant should disclose the nature of the offence so as to indicate the area of search, with the precision required varying from case to case: Beneficial Finance at 543. It should not be answered by the application of a verbal formula: Beneficial Finance at 543; Corbett at [103].
A warrant may be invalid if it fails to set “real and meaningful perimeters” as to the “area of search” or where the statement of an offence fails to impose any “practical constraint upon those executing a warrant”: Zhang v Commissioner, Australian Federal Police [2009] FCA 1170; (2009) 260 ALR 580 at [13] per Flick J citing Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145 at 152 per Hill, Cooper and Whitlam JJ. This does not mean that the scope must be precisely or exactly drawn, given the low threshold of “suspicion” being met and the investigative purposes a warrant serves: Caratti at [34], [37] and [114]. Rather, invalidity will arise if there is a “failure to focus the statutory suspicion and belief upon any particular crime”: Caratti at [37] (citing Beneficial Finance at 533 with approval).
As the Full Court in Caratti concluded at [40]:
What emerges from Beneficial Finance and the many cases since that have followed, applied or approved it, including Corbett in particular, is a test of sufficiency to indicate the area of search, not precision or particular accuracy. There is no legal principle creating an abstract test by which the nature and degree of precision in the statement of a suspected offence in a search warrant will be inadequate... Whether an offence description is adequate or sufficient – or not – is a matter for assessment in all the circumstances of the case at hand. It is largely a factual and practical evaluation, which may be affected to a significant degree by context and nuance. It is substantially a trial determination, rather than an appeal determination, as the subjective nature of the determination will seldom lend itself to being a conclusion that was not open to a primary judge, even if members of an appeal court might have reached a different conclusion. The above principles make appellate intervention, which is already difficult in many cases, often very hard to achieve in search warrant cases. That is all the more so when there has been oral evidence, cross-examination, credit assessments and the drawing of inferences. Those difficulties are compounded by the discretionary nature of the relief that may be granted or refused.
It is against this background that I turn to consider the issues to be determined in this matter.
Grounds of the application
In the Agreed Statement, the parties agree that the following issues fall for determination by the Court (leaving aside the issue which was abandoned prior to the hearing):
(1)Is the first respondent’s decision to issue the warrant invalid on any or all of the following grounds:
(a)the decision was not authorised by s 3E of the Crimes Act on its proper construction (ground 1, OA [18A]);
(b)the three conditions of the warrant did not provide a real and meaningful perimeter to the evidential matters the warrant purportedly authorised to be searched for and seized (ground 2, OA [19]);
(c)the suspected offences specified in the third condition of the warrant were expressed in a conclusionary, vague and uncertain manner (ground 3, OA [20]);
(d)the warrant purported to authorise the search and seizure of material that could not afford evidence as to the commission of the offences in ss 73A(1) and (2) of the Defence Act that were specified in the third condition of the warrant (ground 4, OA [21], [22]); and/or
(e)the decision was legally unreasonable? (ground 6, OA [23])
(2)Was the decision of the second and third respondents to seek the warrant legally unreasonable? (ground 7, OA [24])
In some respects there is overlap between some of the grounds, with certain factual premises underpinning more than one of the arguments.
Details of the arguments will be dealt with below when considering the grounds of the application. Suffice to say at this stage, ground 1 of the applicant’s challenge contends that the decision to issue the warrant was ultra vires having regard to the implied freedom of political communication. Grounds 2, 3 and 4 contend that the warrant was invalid on its face. Grounds 6 and 7 contend that the decisions to apply for and issue the warrant were legally unreasonable.
While the applicant addressed the submissions in the order the grounds appear, it is plain that part of its submission in relation to ground 1 is based on a premise that the terms of the warrant are “vague, conclusionary and uncertain”. This characterisation of the warrant is also relied on by the applicant in grounds 2 and 3 in which it contends that the warrant was invalid because it failed to provide a real and meaningful perimeter to the evidential matters purportedly authorised to be searched for, and the suspected offences in the third condition were expressed in a “conclusionary, vague and uncertain manner”, (and in its grounds 6 and 7). The applicant’s argument in respect to ground 1 therefore depends, in part, on its characterisation of the warrant in the grounds which challenge the warrant on its face (grounds 2 to 4). While the applicant addressed the extent to which my findings in respect to the “face of the warrant” grounds can be used for the purposes of the inquiry in ground 1 (these submissions are detailed further below), it nonetheless accepted that those conclusions would be relevant to resolving ground 1.
It is therefore appropriate to first address grounds 2 to 4 which consider the complaints about the terms of the warrant, because it must be against those terms and the conclusions in respect to them, that any argument as to the warrant, as issued in those terms, being ultra vires (and the decision to apply for and issue the warrant in those terms being legally unreasonable), must be judged. Further, grounds 2 to 4 also necessarily involve a consideration of s 3E (its purpose and scope), and the principles relevant to the interpretation of a search warrant issued under such a provision. These considerations are also relevant to resolving ground 1.
I also note at this stage that the applicant made submissions said to be relevant context in which all the grounds in this application are to be addressed which included, amongst other things, the role of the ABC, the importance of source protection and the consequences if confidential sources are identified, and the detail of the Afghan Files Stories. It was submitted that these matters raised by the applicant related generally to all four of their heads of challenge to the issue of the warrant, although in many instances, there was no submission as to why or how this could be so, given the issues for determination. Ultimately, the submissions were principally relied on in support of ground 1, and are addressed below when resolving that ground.
Grounds 2 and 3, OA [19]-[20]: the warrant is invalid as it does not comply with ss 3E(1), 3E(5)(a) and (c) of the Crimes Act
Submissions
The applicant submitted that when the decisions to seek and to issue the search warrant are considered in their full factual context, those decisions lack an evident and intelligible justification. There was no need to seek or to issue a warrant in such broad and unconfined terms, given the information available to the AFP, and the risk that the warrant posed to the protection of the identity of confidential sources.
The respondents submitted that the authority to issue a search warrant depends on the issuing officer’s satisfaction that there are reasonable grounds for suspecting that evidential material relating to offences will be found at the premises and that this is a “low threshold requirement” citing Williams v Keelty at [211]. It does not require an allegation that the offences have, in fact, been committed by named persons, or proof of those offences. The warrant makes clear on its face that it was issued based on such satisfaction of reasonably held suspicion. It is for the applicant to establish that Registrar Kane could not have been satisfied that there were reasonable grounds for suspecting that there would be evidential material at the ABC’s premises which satisfied the three conditions of the warrant, which is a “difficult and exacting task” citing Wong v Commissioner, Australian Federal Police [2014] FCA 443 at [4]. The decision to seek the warrant was an exercise of an even broader discretion as to the use of police investigative powers and that there was no evidence or suggestion that the respondents did not exercise that discretion following due and proper consideration and the formation of a genuine view that it would be appropriate to seek the warrant.
The respondents addressed the three matters advanced by the applicant as the matters that, taken collectively, purportedly compel the conclusion that seeking and issuing the warrant was legally unreasonable.
As to the first, the respondents relied on the same submissions as made in relation to grounds 2 to 4 (which have been recited above).
As to the second, the respondents submitted that the applicant’s submission about the stage of the investigation proceeds on the misapprehension that the warrant was solely concerned with the investigation into and prosecution of Mr McBride, although even if it was so directed its scope would be justified. They submitted that the public statements attributed to Mr McBride do not alter the prosecutor’s obligation in the McBride Proceedings to prove, with admissible evidence, every element of the relevant offences to the criminal standard. Mr McBride has pleaded not guilty. His reported public statements, which are general in nature, have not always accorded with the position he has taken in court. They submitted that neither when the warrant was sought, issued, nor even now, could any certain view be taken of the issues that will be controversial in the McBride Proceedings. As noted above, the fact that the applicant understands that issues at trial have now been confined is irrelevant to this ground. The respondents submitted that the matters relied on by the applicant do not support its assertion that the AFP knew with particularity what documents the ABC had received, particularly given Mr McBride’s trial has not occurred; press reports suggest that Mr McBride has claimed that he disclosed documents to at least three media outlets; and the AFP sought to carry out a forensic procedure aimed at determining which documents Mr Oakes/Mr Clark may have had contact; it cannot be concluded that the AFP already knew what documents the ABC had received or that it had secured all necessary evidence of the communication and receipt.
As to the third, the respondents submitted that the risk identified, that documents seized may reveal the identity of confidential sources, does not render the seeking or issuing of a search warrant legally unreasonable. They submitted that there is nothing in the terms of s 3E of the Crimes Act to suggest that the risk of identifying confidential sources is a matter to which those seeking and issuing warrants must give weight, let alone treat as decisive. Search warrants, by their very nature, involve an intrusion by the state into the privacy of those to whom a search warrant is directed. The procedure by which the warrant was issued and executed took pains to preserve the rights of the applicant. The warrant was accompanied by a statement of the rights of the occupier of premises, and by instructions as to how claims of legal professional privilege could be made. The respondents submitted that the applicant did not have any legal right to protect the identity of confidential sources. Section 126K of the Evidence Act, which creates a discretion exercisable by a court rather than an entitlement to confidentiality, designedly does not extend to search warrants.
Consideration
Recently, the Full Court in Singh v Minister for Home Affairs [2019] FCAFC 3 at [61] per Reeves, O’Callaghan and Thawley JJ, summarised the position as to whether a decision is legally unreasonable as follows:
The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J).
Examples then provided by the Full Court included that a decision might be legally unreasonable if it: (1) is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: Minister for Immigration and Border Protection vSZVFW [2018] HCA 30; (2018) 92 ALJR 713 (SZVFW) at [10] per Kiefel CJ; [82] per Nettle and Gordon JJ; Li at [68] per Hayne, Kiefel and Bell JJ; (2) “lacks an evident and intelligible justification”: Li at [76] per Hayne, Kiefel and Bell JJ; SZVFW at [10] per Kiefel CJ; [82] per Nettle and Gordon JJ; or (3) is plainly unjust, arbitrary, capricious or lacking in common sense: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] per Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]; Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at [35] per Flick, Perry and Charlesworth JJ.
As the High Court has observed, the test of legal unreasonableness is necessarily stringent: SZVFW at [11] per Kiefel CJ; and see [51]-[60] per Gageler J; [78]-[87] per Nettle and Gordon JJ; [131]–[135] per Edelman J.
To discern irrationality or illogicality more must be shown than that the decision is one upon which reasonable minds may differ: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [131], [135] per Crennan and Bell JJ, or that the Court would have exercised the discretion in a different way: SZVFW at [86] per Nettle and Gordon JJ.
Where there are no reasons given for the exercise of power, or for a decision, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law: Singh at [45] per Allsop CJ, Robertson and Mortimer JJ.
It is important to focus on the power being exercised; the application for and the issue of the warrant. The consideration of whether that was unreasonable necessarily involves a consideration of the preconditions to the exercise of that power. The police commissioner has a broad discretion as to the manner in which he chooses to fulfil his duty, which relevantly is to enforce the law: Hinchcliffe v Commissioner of the Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308 at [33]-[35]. The decision to seek the warrant was an exercise of that broad discretion as to the use of police investigative powers. The applicant did not take issue with the proposition that there was no basis to suggest that the respondents did not exercise that discretion following proper consideration and formation of a genuine view it was appropriate to seek the warrant.
The preconditions to the issue of a s 3E warrant and the requirements as to its contents are discussed above at [75] – [81], and “the decision manifested in the search warrant issued must be read beneficially, and not with an eye keenly attuned to the perception of error”: Caratti at [34].
As explained above, the authority to issue a search warrant depends on the issuing officer’s satisfaction by information on oath that there are reasonable grounds for suspecting that evidential material which satisfies all three conditions of the warrant will be found at the premises. The face of the warrant states that the issuing officer is so satisfied. As the respondents correctly submitted, it is for the applicant to establish that Registrar Kane could not have reached this state of satisfaction, which is a “difficult and exacting task”: Wong v Commissioner, Australian Federal Police [2014] FCA 443 at [4]. This ground must also be considered in the context where the offences identified in the third condition are (accepted by both parties to be) valid offences.
I note also, in light of the applicant’s submissions and my findings above, that these grounds are to be considered in a context where s 126K does not apply to search warrants, that the offence provisions in the warrant are valid and persons who communicate or receive information capable of satisfying those offence provisions do not have immunity from investigation for the conduct.
A number of the matters relied on by the applicant to support these grounds form the basis of its arguments in relation to the preceding grounds.
As to the terms of the warrant which formed the basis of the first consideration, for the reasons given in relation to grounds 2-4, the terms of the warrant satisfy the requirements of a valid warrant. The warrant is not “broad and unconfined” as contended by the applicant. The warrant does not require the specificity or particularly that the applicant contended, for the reasons outlined above. It is not necessary for the offences specified in a search warrant to be particularised in the narrowest possible terms supported by the information before the issuing officer: Caratti (No 2) at [172].
As to the second submission about the stage of the investigation, a number of the matters relied on by the applicant do not have the significance that it contended. Rather, they are common incidents of criminal investigations and prosecutions. For example, that Mr McBride has been charged and committed for trial does not preclude further investigations, including by the execution of a search warrant to obtain further or better evidence. Further, Mr McBride’s statements, are not necessarily admissible evidence, “let alone admissions that address all the elements of the offences that he is alleged to have committed”: ABC v Kane at [40]. As to the request for forensic material, even if the documents upon which finger prints or palm prints have been found have already been obtained were copies of the documents alleged to have been leaked, which is not at all clear, again that does not address all of the elements of the offences under investigation: ABC v Kane at [39]-[41], [45].
Further, as I observed in relation to the previous ground, the applicant’s contention that the AFP would have known the documents sought with some particularity ignores that the warrant is directed at material as to which there are reasonable grounds for suspecting that it will afford evidence of the commission of the offences specified in the third condition. Such material is plainly not confined to any documents that were provided by Mr McBride. It is not difficult to imagine the potential breadth of material which might fall within that category. Once that is recognised, the submission has no weight.
As to the third submission, the applicant did not explain how the implied freedom and importance of the protection of confidential sources is relevant to the question of whether the decision to apply for and issue a warrant under s 3E of the Crimes Act is unreasonable. The applicant has not suggested or demonstrated that this is a mandatory consideration under s 3E. For the same reasons as given above, it cannot be that the application or issue of a warrant is unreasonable in the absence of a condition protecting the identity of confidential sources. Again, for the reasons above, there is no right to such a protection in the warrant.
The applicant has not established that the decisions to apply for and issue the warrant were legally unreasonable.
Grounds 9, OA [24B]: source protection
As noted earlier, this claim only relates to four documents. However, for the reasons given above, s 126K which is the basis of this claim for protection does not apply to search warrants. There is no other basis for the claims made. None other is suggested by the applicant. Consequently I have not inspected the four documents.
That said, I do note that the applicant submitted that it would make a claim for source protection even if the source was Mr McBride even though he had identified himself as the source. However, on a plain reading of s 126K, even if it were to apply, it would not apply to Mr McBride as his identity is already know: Ashby v Commonwealth of Australia (No 2) [2012] FCA 766; (2012) 203 FCR 440 at [32] per Rares J.
Discretion
As I have found that the applicant has not established that the warrant is invalid, it is unnecessary to address the consequences of a finding otherwise.
However, as I have considered the evidence, in the event I am wrong and had I decided otherwise, on the material before me, I would not have ordered the material seized be returned to the applicant.
Whether material is to be returned is a matter of discretion, with the relevant principles set out by Hill J in Puglisi v Australian Fisheries Management Authority [1997] FCA 846; (1997) 148 ALR 393 (Puglisi) at 403-405, endorsed by the Full Court in Caratti at [158].
In Puglisi, Hill J declined to order that the unlawfully seized items be returned in circumstances which included that, following the purported execution of a third set of warrants, criminal proceedings were commenced against Mr Puglisi. The material seized had been obtained by a wholly invalid search warrant. An attempt by the authorities to remedy that situation was entirely unsuccessful. His Honour concluded that use of the material was a matter best left to the criminal courts in the exercise of its discretion as to the admissibility of illegally obtained evidence. He noted that at least some of the seized items could be “expected to be used” in the prosecution. However, there is no indication that Hill J considered the seized items or concluded that they had any evidentiary relevance.
Wigney J in Caratti (No 2) at [467]-[480], after considering the authorities, discussed the relevant considerations in the exercise of the discretion. He made the following observations. He stated that the starting point is the prima facie entitlement of a person not to be unlawfully deprived of his or her goods, although against that consideration is the significant public interest in the administration of, and non-interference with, the investigation and prosecution of criminal offences and the administration of justice. The question is whether, in all of the circumstances, the desirability of allowing the police to retain the illegally seized items outweighs the undesirability of permitting the police to retain the items having regard to the way in which they were obtained.
In that context, the considerations are not limited to whether there are criminal proceedings on foot or whether there is evidence that the seized items will afford evidence of those offences. His Honour observed that all the facts and circumstances surrounding the unlawful seizure must be considered, which may include whether the unlawful seizure was deliberate, reckless or contumelious, or if it was the product of mere technical deficiency or less serious conduct; the nature of the items seized; whether there is a risk that, if returned, the items might be destroyed, altered or secreted; the nature and seriousness of the alleged offences; whether criminal proceedings are on foot or are imminent, or whether the items need to be reviewed to determine if criminal proceedings can be commenced; and the possible importance and probative value, if any, of the seized material. This, of course, is not an exhaustive list.
Applying the principles to this case, there are a number of considerations which weigh heavily in favor of the material not being returned. In identifying these considerations I am mindful of the importance of a warrant complying with the requirements imposed by law, given its intrusive nature.
First, the AFP attempted to liaise with the applicant as to the execution of the warrant they intended to seek. This included the AFP requesting cooperation to the extent that it would be for the ABC to provide the documents that met the search conditions of the warrant, once it had been issued. That would have resulted in the AFP not physically conducting the search and therefore would limit its exposure to matters of concern to the applicant. That approach would have reduced if not alleviated the applicant’s concerns. The applicant declined to adopt that approach on the basis that the offences related to their journalists. While the applicant was entitled to take that approach, it meant that the warrant once obtained would be executed by the AFP.
Second, the manner in which the warrant was executed by the AFP was such that steps were taken to ensure the intrusion was limited. The applicant’s legal representatives were present throughout the execution of the warrant and were involved in discussions with the AFP during that process. The warrant was carried out in one room of the applicant’s premises with an employee of the applicant operating the computer (as opposed to the AFP). No other search of the premises was conducted.
Third, the applicant wished to preserve their right to challenge the validity of the search and as such all the documents seized were transferred to two USB sticks which were sealed with the AFP giving an undertaking not to disclose or act upon any of the seized material. The applicant is in the position it submitted it ought to have been in, although it occurred by agreement as opposed to being on the face of the warrant. There is no practical distinction. I appreciate that the applicant submitted there is a distinction because the respondents contend that source protection in s 126K does not apply, as opposed to acknowledging its existence. However that is not a valid point of distinction. In any event, the respondents are correct in their analysis.
It follows the applicant is actually in the position which it says is necessary to prevent the warrant being ultra vires, with certain documents it claims having the capacity to identify informants who were promised confidentiality by an ABC journalist being the subject of a source protection claim made by the applicant.
Finally, given the communication between the parties, and events leading up to the execution of the warrant, there could have been no doubt that the focus of the warrant was in relation to offences related to the Afghan Files Stories. Moreover, as noted previously, there has been no challenge to the execution of the warrant.
Conclusion
The applicant has not established any of the grounds of the application. As such, the application is dismissed with costs.
I certify that the preceding three hundred and eighty-seven (387) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham. Associate:
Dated: 17 February 2020
Annexure A
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