ABC Launches Legal Challenge Against AFP Raids

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The ABC has launched legal proceedings in the Federal Court of Australia, challenging the warrant which enabled the Australian Federal Police (AFP) to search for, and record, fingerprints found at the premises and to take samples from the ABC for ‘forensic purposes’ as well as to ‘add, copy, delete or alter other data … found in the course of a search’.

Earlier this month, the AFP raided the head office of the ABC, searching for evidence to prove that ABC journalist Dan Oakes had committed criminal offences including receiving stolen goods and unlawfully obtaining military information.

The AFP warrant and subsequent raid related to files detailing unlawful killings by Australian special forces in Afghanistan. At the time, ABC News executive editor John Lyons, who spent 9 hours in a room with AFP officers, live tweeted about the raid, remarking that he was “staggered by the power” of the warrant.

Legal challenge by the ABC

ABC Managing Director David Anderson has now confirmed the organisation has mounted a legal challenge to the constitutional validity of the warrant.

In its application, the ABC is seeking a declaration from the Federal Court that the warrant was invalid, and that the search and seizure of more than 80 items relating to the Afghan Files was unlawful.

The ABC is also seeking an injunction restraining the AFP from accessing any of the seized materials and an order that the items be returned to the ABC.

The application to the Federal Court states: “The Afghan Files were reports in relation to government and political matters of the highest public importance”. And, “the sources of information relied on in preparing the Afghan Files included information provided to David Oakes by informants in circumstances where David Oakes had promised the informants not to disclose the informants’ identity… The Afghan Files state that they were based upon information provided by such sources.”

The basis of the application is that the terms of the warrant were too vague and broad. The ABC contends that the AFP’s decision to seek the warrant, and it being granted were both unreasonable because of the importance of protecting media sources and because of “the public interest in investigative journalism and therefore implied constitutional freedom for the reasonable discussion of government and political matters”.

Implied right of political communication

There are very few individual rights given by our Constitution.

The only express rights are:

  • The right to vote (Section 41),
  • Protection against acquisition of property on unjust terms (Section 51 (xxxi)),
  • The right to a trial by jury for criminal cases in the higher courts (Section 80),
  • Freedom of religion (Section 116), and
  • Prohibition of discrimination on the basis of State of residency (Section 117).

However, section 7 of the Constitution says that the Senate should be composed of senators “directly chosen by the people of the State”, while section 8 similarly states that the House of Representatives “shall be composed of members directly chosen by the people.”

In the case of the Australian Capital Television v Commonwealth (1992), the High Court used these two provisions to find that the Constitution brought into existence a system of government where the people directly elect those who are in power.

This means that members of parliament are representatives of the people, and need to be chosen by, and accountable, the public. This, in turn, necessitates freedom of political communication.

Freedom of political communication is the only way that a citizen can:

“communicate his or her views… criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives… Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives.”

The freedom is not restricted merely between the public and government – it extends to political communications between individuals and groups within the community.

People cannot make informed decisions unless they have access to information, and public discussion is seen as an essential element of our political process.

It is this implied right that the ABC will be relying upon to challenge the validity of the police raids.

A case about press freedom

Since the moment the AFP set foot in the door of the head offices of the ABC, the broadcaster has held steadfast in its defence and protection of its journalists as well as the work they do to investigate issues of importance and inform the public.

After the raids, AFP officers left the ABC’s premises with two USB drives containing

containing a number of electronic files, but had given an undertaking not to access the seized files until the outcome of the High Court challenge was determined, but a full court hearing is not expected until late July or early August.

Whistle blower faces court

In the meantime, David McBride, the former Australian military lawyer, accused of leaking files to the ABC in relation to the Afghanistan story has made his first court appearance in the ACT Supreme Court. He is charged with theft of commonwealth property, three counts of breaching the Defence Act, as well as the unauthorised disclosure of information.

He has pleaded not guilty to all charges. While Mr McBride does not dispute leaking the information he argues that it was his duty to do so – to report misconduct by Australian Special Forces.

However, his legal battle is not straightforward. Despite being committed to trial several weeks ago, Mr McBride is yet to see a full brief of evidence against him. This is delaying proceedings, but Crown Prosecutors have explained that this is because before the trial can start, first, an agreement must be reached about how to deal with “national security information” within the case.

Despite facing up to 50 years in prison, Mr McBride is optimistic about the judicial process, and says he would never take a plea bargain. The trial is expected back in court in the coming weeks.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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