Attorney-General 'seriously disinclined' to approve prosecution of journalists

Attorney-General Christian Porter has declared he would be "seriously disinclined" to authorise the prosecution of journalists for publishing secret information and said reporters raided by police earlier this month were not the targets of the investigations.

Amid ongoing probes into the leaking of classified documents, the Australian Federal Police alarmed media outlets by opening the door to prosecuting journalists for publication of the material, with acting commissioner Neil Gaughan saying the police had "not made a decision" on the dramatic step.

Attorney-General Christian Porter says he would be "seriously disinclined" to approve prosecution of journalists.Credit: Dominic Lorrimer

For a person to be prosecuted under the relevant criminal law, the Commonwealth Director of Public Prosecutions (DPP) must independently recommend charges and the attorney-general must then provide consent.

The AFP this month raided the home of News Corp journalist Annika Smethurst over a 2018 report on a proposal to expand the powers of Australia's electronic intelligence agency. A raid on the ABC's Sydney headquarters the next day related to a report in 2017 that revealed allegations of misconduct by Australian special forces in Afghanistan.

Asked what his position was on the possibility of journalists facing charges, Mr Porter said the DPP had not made a recommendation to prosecute on the ABC and News Corp matters and "there is absolutely no suggestion that any journalist is the subject of the present investigations".

He said police were executing search warrants to gather evidence for their leak investigations.

"Obviously, if in any future proceedings the AG's consent was sought by the Commonwealth DPP, I would be required legally to consider all the circumstances of any case but I can say I would be seriously disinclined to approve prosecutions except in the most exceptional circumstances and would pay particular attention to whether a journalist was simply operating according to the generally accepted principles of public interest journalism," Mr Porter said.

The AFP has said the warrants executed against Ms Smethurst and multiple ABC journalists concerned "separate allegations of publishing classified material, contrary to provisions of the Crimes Act 1914, which is an extremely serious matter that has the potential to undermine Australia's national security".

Under secrecy offences in the Crimes Act in place at the time of the leaks, it is illegal to knowingly or recklessly receive classified information. This indicates journalists could be targeted under the investigation in addition to the people who leaked the material.

In a press conference, Mr Gaughan said offences were still being committed by media organisations as the leaked documents were being hosted on the ABC and News Corp websites.

Shadow attorney-general Mark Dreyfus said Mr Porter's stated reluctance to approve prosecution of journalists was "not good enough" and called for further clarity on press freedom.

"While the threat of prosecution hangs over the heads of these journalists, the freedom of all Australian journalists to do their jobs, and the public's right to know, are harmed," Mr Dreyfus said.

"Why is the Attorney-General contradicting the federal police as to whether these journalists are a target in the first place?"

Mr Dreyfus said Mr Porter "must rule out allowing these journalists to be prosecuted" or explain why he wouldn't.

The police raids have sparked fierce debate about the balance between national security laws and press freedom, with media organisations and civil society groups questioning the adequacy of current protections for journalists and whistleblowers.

David McBride, a former military lawyer, has been charged with leaking the classified material that formed the basis of the ABC's story.

Labor has called for a parliamentary review to examine the impact of national security laws on public interest journalism. The government has expressed openness to an inquiry pending further consultation with media organisations and others.