Commissioner's opening statement to the Parliamentary Joint Committee on Intelligence and Security

CHECK AGAINST DELIVERY

Thank you for inviting the AFP to appear here today.

I, and my team, intend to be as frank as possible in answer to your questions today as we believe this is very important work.

However, there will be some limitations with what we can say in public relating to current and ongoing investigations.

On the most part, the answers we give, and my comments now, are general and designed to assist the Committee with your work. They should not be taken as being indicative of any particular matter.

First and foremost I want to say- as police we do not second guess the decisions of Parliament to criminalise certain conduct.

Of course we make decisions about prioritising our investigations, but we do not pick and choose which offences we investigate based on random grounds. We need legal and operational frameworks in which to make these judgements and determinations.

The powers we use to investigate those offences are also legislated by Parliament.

As has been noted by some commentators, when a matter is referred to the Police, the consequences are uncertain as police follow an investigative 'discovery' path that is inherently unpredictable – based entirely upon what the investigation reveals.

This brings me to my second point, which I consider to be related. The very real and proper concept of press freedom has to be balanced against a range of factors, including national security and operational safety.

To this end, the AFP welcomes the new Ministerial Direction on press freedoms which will assist the AFP, and our partners, to find the appropriate balance – within the frameworks that we are provided.

You will also see this balance reflected throughout legislation, for example, in broadcasting laws, defamation laws and court non-disclosure orders.

You would also be aware the new journalist defence for unauthorised disclosure in the criminal code does not apply to disclosures that reveal the identity of intelligence officers or people under witness protection.

Nor does the journalist defence apply where the release was for a malicious purpose, rather than public interest.

If there is an imbalance between national security and press freedom, then that imbalance needs to be addressed through law, to ensure that there is no ambiguity.

If Parliament enacts criminal offences, then it is very important that police have the appropriate powers and independence to investigate those offences.

I want to say a few things about the investigation process.

Our investigations are directed at collecting information and evidence.

That means determining the facts of a case and gathering all relevant evidence so there can be an informed decision about prosecution by the CDPP, and, where relevant, the Attorney-General.

Being on the receiving end of police information gathering powers does not necessarily make someone a suspect, and it does not mean the CDPP will be prosecuting.

In some instances, police powers may identify exculpatory evidence about a person.

Information collection powers are not intended to be punitive or intimidating.

If I had anything to suggest that my investigators were using their powers for that purpose, I would take that very seriously.

In fact, where operationally possible, AFP investigators work cooperatively with organisations that are to be the subject of a search warrants.

This may include arranging for the warrant to be executed at a time and in a manner agreeable to all parties, as we did with the ABC, and were doing with News Corp.

We do this all the time with cooperative third parties, including banks and large corporations and we very rarely have complaints about that process.

Now that is not always possible, and as you know we do also execute search warrants without notice.

There is nothing unusual about that process.

We do that to ensure that evidence is not destroyed, which can be a real risk if suspects or other relevant parties have notice of a warrant before it is executed.

I also want to speak about secrecy offences, those that will give rise to many of the issues being considered by the Committee.

There are numerous secrecy offences in Commonwealth legislation that apply to specific types of information.

There are also a series of general secrecy offences in the Criminal Code.

These offences are about ensuring that information is not released in a way that could be harmful to our national interests, and potentially risk the personal safety of individuals.

Public officials are not authorised to apply a security classification for the purpose of preventing embarrassment to an individual, organisation or entity. It is implicit in a security classification that relative 'Harm' has been considered.

As you know, the general secrecy offences were debated and amended by Parliament last year.

The new laws apply to conduct that occurred from 29 December 2018 onwards.

They do not have retrospective application.

One of those amendments was to include a defence for journalists.

This is not a blanket defence, and cannot be presumed by an investigator.

To be covered by the defence, the journalist must have reasonably believed their conduct was in the public interest.

That is not something you can determine from the contents of a classified document or news article.

What this means, is that this defence most likely need to be explored in the investigative process and, where necessary, we should expect this defence to be tested in the court process.

The journalist defence does not apply to Commonwealth officers that have disclosed information to the media in an unauthorised manner.

Commonwealth officers are expected to use the Public Interest Disclosure (or PID) regime to raise any concerns they have about maladministration within Government.

This is important, because the PID regime is a way to raise those issues without putting sensitive operations, capability or the lives of personnel at risk.

It also provides protections to the Commonwealth Officer.

There is often a lot said about 'whistle-blowers' and their need to be protected. I believe it would be important for this committee to consider exactly what protections currently exist, are they working, and are they being utilised – so that it is unambiguous how this concept intersects with secrecy, and unauthorised disclosure laws, and criminal investigations.

This is an important point for police investigators.

When police collect information from or about journalists as part of an investigation, it may be for the purpose of collecting evidence about Commonwealth officers who have potentially committed a criminal offence by disclosing sensitive information.

This collection from journalists will most likely be required regardless of whether a journalist is subject of the investigation.

It is simply a product of establishing the elements of a crime.

Finally, I want to finish by saying, as police we do not target specific sectors of the community, such as the media. We target criminality – which is determined by the laws created by Parliament, and based on our investigation to establish facts and evidence

I want to reassure the Committee, and anyone listening, that we do understand the magnitude and nature of any interaction between police and a journalist. Contrary to the perception, this is not a decision taken lightly.

In fact, in the last five years alone the AFP has received 75 referrals for potential unauthorised disclosure offences.  Each and every one of them could have resulted in evidence being sought from a journalist or media organisation. 

However, there have only been two occasions in that time where an investigation has led to that action being taken. We are very judicious about the use of our powers, the direction of an investigation, and the implications that may arise. I believe that this is an important consideration for the committee.

That concludes my opening remarks, and I welcome any questions you may have for the AFP.

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