Australian Broadcasting Corporation v Kane (No 2)

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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)…

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Details
Case
[2020] FCA 133
Decision Date

CaseChat Overview and Summary

The Australian Broadcasting Corporation (ABC) filed an application for judicial review in the Federal Court of Australia against the Australian Federal Police (AFP), the Australian Government, and the Commonwealth of Australia. The application sought to challenge the validity of a search warrant issued by the AFP under the Crimes Act 1914 (Cth) for the ABC's premises. The ABC argued that the warrant was invalid as it did not comply with certain statutory provisions and had not meaningfully limited the scope of the search. The ABC also argued that the warrant infringed upon the implied freedom of political communication and journalist privilege under the Evidence Act 1995 (Cth). The court had to decide whether the warrant was issued in accordance with the statutory requirements and whether it infringed upon the implied freedom of political communication and journalist privilege.

The court found that the warrant was valid as it complied with the statutory provisions and had meaningfully limited the scope of the search. The court also found that the warrant did not infringe upon the implied freedom of political communication or journalist privilege. The court held that the warrant was necessary to investigate serious offences related to the leaking of classified defence documents, and the scope of the search was limited to the materials relevant to those offences. The court also found that the journalist privilege did not extend to the seizure of material under a search warrant issued under the Crimes Act. The court held that the privilege was limited to the protection of the identity of confidential sources and did not apply to the materials that were already published by the ABC.

The Federal Court dismissed the application and ordered the ABC to pay the costs of the respondents. The court held that the ABC had not established any of the grounds of the application and that the warrant was valid and did not infringe upon any constitutional or statutory rights. The court emphasised the importance of protecting the identity of confidential sources and the public interest in investigating serious offences related to the leaking of classified defence documents. The decision highlights the balance between the right to freedom of expression and the need to protect national security and the interests of justice.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.EvidenceAgreed 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.