Inside Story

Hyperbole meets hypocrisy when governments take on (some) leakers

There are leaks that are properly investigated, and leaks that aren’t

Rodney Tiffen 19 June 2019 2304 words

Suspicions that the Howard government leaked against former Office of National Assessments analyst Andrew Wilkie (left) weren’t resolved by a half-hearted police investigation. Mr Wilkie is shown during a visit to Washington in July 2003. Scott J. Ferrell/Congressional Quarterly/Getty Images

In May 2015 the Daily Telegraph published a front-page scoop revealing that Australian citizens suspected of involvement in terrorist organisations would soon face having their citizenship stripped by ministerial decree. That, indeed, was the proposal prime minister Tony Abbott and immigration minister Peter Dutton had put to cabinet the previous night, without warning or any briefing papers. But their colleagues, some affronted by the ambush, others by the substitution of ministerial discretion for judicial process, rejected the move.

The story was based on a leak designed to pre-empt a cabinet decision, and it clearly related to national security. Yet no investigation was launched. It’s true that no official documents appeared to have changed hands (or perhaps even existed), but in other respects the incident had strong parallels with Annika Smethurst’s controversial April 2018 article in the Sunday Telegraph, the subject of the first of this month’s highly publicised Australian Federal Police raids. In Smethurst’s case, the government’s reaction couldn’t have been more different.

Smethurst’s article quoted from confidential correspondence between Mike Pezzullo, secretary of the home affairs department, and Greg Moriarty, secretary of the defence department, about a plan to have the Australian Signals Directorate spy on Australians in certain circumstances. According to the Sydney Morning Herald, neither prime minister Turnbull nor defence minister Marise Payne had known of the plan before Smethurst’s story was published, and they promptly vetoed it. Yet 401 days later, on 4 June this year, the journalist’s Canberra home was searched for seven hours by AFP officers.

Similar treatment was meted out to the ABC the following day, after an even longer hiatus. Six members of the AFP raided the broadcaster’s Ultimo headquarters as part of an investigation into a news story, “The Afghan Files,” that went to air in 2017. The story was part of the wider probing of the conduct of Australian military personnel in Afghanistan by various news outlets, which had already sparked a judicial inquiry. During their visit to the ABC, the AFP officers used keyword searches of scripts, notes, memos and emails to identify 9214 items they wanted to copy.

Coming on successive days three weeks after the government was re-elected, the two raids brought a strong reaction from the media, Labor and the Greens. The pursuit of the leakers after such a long time suggests that intimidation was the main aim.

These aren’t the only high-profile investigations of alleged leaks in Australia at the moment. Australian Taxation Office debt collector Richard Boyle is facing sixty-six charges after disclosing unethical practices and a toxic work culture in his workplace to the ABC and Fairfax papers. Although his revelations led to reforms in the ATO’s practices, he still faces a possible jail sentence. And attorney-general Christian Porter is pursuing lawyer Bernard Collaery and former Australian Secret Intelligence Service officer “Witness K” over the disclosure that ASIS bugged Timor-Leste’s cabinet room during 2004 negotiations over Timor Sea oil. Not only is Porter prosecuting the pair fully fifteen years after the alleged offences, but he also wants the court proceedings held in secret.

When prime minister Scott Morrison dismissed criticisms of this month’s raids, he told journalists that “it never troubles me that our laws are being upheld.” But efforts to control leaks and punish leakers have little credibility precisely because they lack the basic ingredient of justice, namely consistency. If police investigated only some thefts rather than treating all theft as crime, the law would lack credibility. But that is exactly how leaks and leakers are treated.

“Leaking blows apart the Westminster tradition of confidentiality upon which the provision of frank and fearless advice depends,” the head of the prime minister’s department, Peter Shergold, told an audience in Sydney in late 2004. Not only is it a criminal offence, he added, it is also “democratic sabotage.”

The senior public servant was justifying his request that police investigate the National Indigenous Times, which had quoted from leaked cabinet documents in an article revealing the federal government’s plan to abolish the Aboriginal and Torres Strait Islander Commission, or ATSIC. When AFP officers arrived at the home office of its editor, Chris Graham, he immediately handed over the documents, but they insisted on searching the house for a further two hours.

Shergold’s insistence on the sanctity of policy processes would have been more convincing if successive governments, including the one he was serving under, had not engaged in selective leaking of their own. Indeed, immigration minister Philip Ruddock had been caught on tape the year before revealing confidential information to a journalist about an ATSIC commissioner and promising that he, Ruddock, always looked after his friends. You could call it democratic sabotage, but far from being punished for the leak, Ruddock was promoted to attorney-general.

Another internal leak, and another Telegraph scoop, came in September 2014 when an intelligence review found that the security of Parliament House needed strengthening. The finding was almost certainly leaked to the paper by prime minister Tony Abbott’s office, and resulted in a front-page story under the headline “Red Alert Over Plot to Attack Nation’s Leaders.” There was no plot — the review identified only potential vulnerabilities — and if security were really the government’s primary concern, it would have kept the report secret until the problems had been fixed.

But if raising the political temperature about terrorism was the priority, then leaking the report to generate sensational coverage was obviously the best option. The following August leading Canberra journalist Laura Tingle reported that the National Security Committee of cabinet had asked “for a list of national-security-related things that could be announced weekly between now and the election.” No attempt was made by the government or the police to identify the source of the leak to the Telegraph.

Soon after this month’s dramatic raids the Sydney Morning Herald revealed that the AFP had quietly abandoned an investigation into a separate leak that occurred in February this year. At the height of the controversy over proposals by the crossbench and Labor to transfer asylum seekers in medical need to mainland Australia, a front-page story in the Australian revealed the contents of a home affairs briefing paper about the potential impact of the draft bill.

The paper had included input from ASIO, and its publication in the Australian drew an angry response from director-general Duncan Lewis, who said that it had undermined the organisation. Labor charged that the government had done the leaking, but the AFP eventually decided not to continue its investigation because the prospect of identifying a suspect was “limited.” The contrast with its zeal in pursuing the other two raids was stark.

In another incident, in October 2017, police raided the headquarters of the Australian Workers’ Union in Melbourne and Sydney. They were on a quest to discover whether donations to GetUp! — made more than a decade before, during Bill Shorten’s period as secretary of the union — had breached the union’s rules. Someone had leaked details of the raid to the media, though, and reporters and camera operators had arrived half an hour earlier to see it unfold.

The portrayal of a major union (and Bill Shorten) in a bad light on the evening news would no doubt have pleased the government. But attention shifted almost immediately to the question of who had tipped off the media. Industrial relations minister Michaelia Cash denied five times in a single day that she or anyone in her office had anything to do with it. But during the dinner break her media adviser, David De Garis — who had been outed as the source in a BuzzFeed article — admitted to her that he had told the media, and resigned. Inconsistent and changing versions of who told whom proliferated among the media advisers in the offices of Cash and justice minister Michael Keenan.

Labor and the union claimed the raid itself was a stunt. It was authorised by the Registered Organisations Commission, a body set up by the Coalition government following the long-running royal commission into trade unions. Cash’s chief of staff, Ben Davies, testified that the commission’s media officer Mark Lee told him there had been a tip-off that the union might have been preparing to destroy documents. Given that the actions in contention had happened more than a decade earlier, that at least some of the donations had been declared to the Australian Electoral Commission, and that a royal commission had probed similar issues, it is hard to understand the sudden urgent need for a raid.

A senior AFP officer told the Senate that eight people had refused to testify about who else was involved in the leak and expressed regret that the police could not compel people to give statements or assist in inquiries. The AFP wanted to talk to ministers Cash and Keenan, but both of them twice refused to be interviewed, although they provided written statements. Cash said she referred police to her statement in Hansard and they had asked no further questions. (Cash’s bill to taxpayers for the legal advice was $288,000, while the Registered Organisations Commission’s was $550,000.) In the face of this intransigence, the AFP meekly surrendered.

Sometimes the AFP seems not simply dilatory but determined to avoid finding a leaker. In 2003, in the lead-up to the Iraq war, Andrew Wilkie, an analyst in the Office of National Assessments, and a former military officer, resigned in protest at the way he believed the Howard government was misrepresenting intelligence to back its case for joining in the United States–led invasion.

Wilkie protested in a very public way, but he also observed the proper forms. He first informed the head of ONA that he was resigning, then walked out the door to give his story exclusively to the doyen of the Canberra press gallery, Nine’s Laurie Oakes. After making a series of public criticisms, he stood as a Greens candidate in prime minister John Howard’s electorate and now sits in parliament as the independent federal member for Clark.

As soon as Wilkie entered the political fray the government counterattacked. It argued that he had not been closely involved in processing intelligence about Iraq and attempted to rebut his specific claims. But while Wilkie was careful never to disclose confidential material, the government leaked a classified report Wilkie had prepared on the possible dangers of Iraqi weapons of mass destruction against invading forces. The report was used in parliament by a Liberal backbencher and reported by News Corp columnist Andrew Bolt. Presumably it was leaked to suggest that Wilkie believed in the existence of the weapons and to show how the scenario he had envisaged had not eventuated during the successful US-led push to Baghdad.

Whoever engineered this attempt to discredit Wilkie clearly committed an offence. The document was a fairly recent one and all copies were accounted for at ONA. A few days before the leak, though, foreign minister Alexander Downer’s office had requested a copy. When questioned about the leak and the possibility either he or his staff were involved, Downer prevaricated and blustered.

Yet the police investigation failed, even though a senior security official told Canberra Times editor Jack Waterford that “a cop who couldn’t solve this one couldn’t find his bum with both his hands.” Current treasurer Josh Frydenberg was among Downer’s staff members at the time; it would be interesting to have his recollections of events.

One particularly worrying feature of this month’s raids was the open-ended nature of the searches and the large amount of material consequently taken from the media organisations. In this situation, journalists can only rely on the police exercising voluntary restraint in their handling of information not related to the alleged offence.

At least once, though, that faith has been abused. In February 2003, a Nine Network news report forced Alexander Downer to deny the “completely outrageous” allegation that Australia was already committed to fighting the Iraq war. The story was based on a minute of a conversation between Downer and the New Zealand high commissioner in which the foreign minister said that Australia would be sending troops to Iraq irrespective of any UN decision. Nine’s interpretation of those remarks seemed to be confirmed the following month when prime minister John Howard announced the commitment of troops.

The government believed that the minute of the conversation had been leaked by Trent Smith, a foreign affairs officer who had once worked for the Labor Party. He was suspended on full pay and subjected to a three-year investigation, at a cost of more than $1 million, which drew a blank. Not long after that, though, he was sacked for another offence: sending an email from his home computer while he was on holiday to a member of shadow foreign affairs minister Kevin Rudd’s staff. In response to an enquiry, Smith had merely pointed out where certain information was available on the public record and suugested asking questions in Senate estimates if further detail were needed. He had not divulged any secret information in the email, which had been caught up in the investigation of a completely different matter.

Smith appealed against his dismissal, and in October 2007 industrial relations commissioner Barbara Deegan described his sacking as “harsh, unjust and unreasonable.” Four and a half years after his suspension, she ordered that he be reinstated.

The pursuit of leakers is marked by inconsistency, hypocrisy and this kind of opportunism. A look at which leaks were pursued vigorously, and which were not, shows that the energy of the police efforts seems to align almost perfectly with the government’s political priorities. For anyone who thinks the AFP investigation of leaks is marked by independence, consistency and competence, I have a harbour bridge you might like to buy. •