Police raid in Canberra raises press freedom and other issues

A police raid on the home of Canberra Times journalist Philip Dorling and the ensuing five hour search, following publication of an article in June about the Defence Intelligence Organisation, raises issues about freedom of the press, shield laws to protect journalist sources, and whistleblowers. The Government is lying low as questions emerge about who initiated the police action, and how the "chilling effect" of such actions fits with pre-election commitmments to act to improve in all three areas.

This paragraph in the Canberra Times report on the raid is of particular interest:

"The (search) warrants outlined allegations that Dorling and an unnamed public servant had committed four breaches of the Commonwealth Crimes Act by communicating confidential government information or documents."

While the draconian nature of the law that makes a crime of unauthorised disclosure of any information acquired in the course of duties by a Commonwealth officer (Section 70 of the Crimes Act) is well known, could a journalist commit a crime by writing a story based on the leak of a ministerial briefing paper?

One possibilitiy is that the Australian Federal Police are investigating whether Dorling's offending article which provided some information about the structure of the Defence Intelligence Organisation and its priorities, transgreses anti-espionage laws.

The Commonwealth Criminal Code, among other things makes a crime of any communication by anyone of information, not already in the public domain, about "the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies", where two other conditions are satisfied: the person communicates the information "intending to prejudice the Commonwealth’s security or defence"; and "the person’s act results in, or is likely to result in, the information being communicated or made available to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation." Penalty: up to 25 years.The Code contains a similar penalty for any public servant who intends to prejudice security and discloses this type of information.

You can bet every embassy in Canberra reads the Canberra Times and would have reported promptly to head office on the article at the time.However " intent to prejudice "constitutes a significant hurdle, and much of what was in the article is probably already in books or on the web, so it's hard to imagine any charges proceeding against Dorling. The main purpose no doubt is to track down the source, and to put the wind up the public service, in particular those in government who deal with potentially sensitive information about intelligence gathering.

Meanwhile Queensland intends to ask the Law Reform Commission to look at the issue of shield laws for journalists after first legislating to compel witnesses to answer questions posed by the Crime and Misconduct Commission, putting reform in this area in that state a long way down the track.