Last week, it dawned on many that reporting on high level government deliberation might be enough to permit AFP officers to rummage through your underwear drawer. Tall people might also descend on your workplace if you dare report on alleged war crimes, fishing through your IT systems for your criminal bureaucrat source.
Raids on journalist Annika Smethurts's home and the ABC headquarters in Sydney mark a suspiciously delayed investigation into a 2018 story about a government proposal to expand spy agency powers, and a 2017 report about alleged war crimes committed by Australian soldiers in Afghanistan. The rebuke was unprecedented: media outlets and politicians from across the political spectrum voiced disgust at such a brazen and selective intrusion into the work of journalists.
Demands for the protection of fundamental rights are, of course, a good thing. But the media coverage of the AFP raids took a scattergun approach and, in some cases, contained oversight and inaccuracy. Here are some important details that were lost in the furore.
First, the primary targets of the raids were the public servants who leaked the information. The impact of the raids on journalists is a live issue, but — more immediately — concern should be directed towards the journalistic sources who nervously wonder whether the AFP will spot their name scribbled somewhere in the margins of a draft article.
The criminal offences that apply to public servants are less forgiving and more frequently prosecuted than those that could apply to journalists. Public servants who disclose sensitive information learned in the course of their employment are likely to be guilty under s 122.4 of the Criminal Code Act 1995. It does not matter how important that communication was to the public interest.
Second, contrary to some suggestions, the raids were not made possible by the smooth passage of controversial national security legislation through Parliament in recent years. The substance of the offence that applies to public servants has not changed since 1960 (state and territory offences date back longer). A version of the offence of communicating a leak, which could apply to journalists, has been around since at least 1914 (and even that modelled an imperial statute enacted in 1911). This conversation is long overdue.
Third, commentary on the raids has revealed a widespread misunderstanding — and underestimation — of Australian constitutional rights. Politicians and commentators swiftly demanded amendments to a Constitution that is apparently bereft of sufficient free speech protections.
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