AFP raids on ABC ruling ‘should send chill down spines’


The Australian Broadcasting Corporation has lost its case against the Australian Federal Police and been ordered to pay legal costs after challenging the legitimacy of a search warrant used to raid its Ultimo headquarters last year.

It took just seconds for Justice Wendy Abraham to hand down the ruling in the Federal Court of Australia at a hearing in Sydney today.

Justice Abraham ordered the ABC pay the legal costs of the AFP commissioner, local court registrar Martin Kane who approved the search warrant and federal agent Ian Brumby who executed it.

Outside the hearing ABC news director Gaven Morris said the ruling should "send a chill down the spines" of Australian citizens.

AFP officers inside the ABC conducting a raid. Picture: Elise Worthington
AFP officers inside the ABC conducting a raid. Picture: Elise Worthington

"Fundamentally the court ruled the AFP have the right to enter a newsroom, fossick around in confidential files and take information about the way it undertakes its journalism," Mr Morris said.

"This is not the way a free and fair democracy works where police can go into newsrooms, take files and from journalists and confidential sources and potentially criminalise the journalists who are just doing their job."

He said he felt for ABC journalists Dan Oakes and Sam Clark whose series "The Afghan Files" prompted the AFP raids.

ABC News Director Gaven Morris outside ABC HQ. Picture: Toby Zerna
ABC News Director Gaven Morris outside ABC HQ. Picture: Toby Zerna

"I'm really thinking of Dan Oakes and Sam Clarke here, three years after they published their stories and almost eight months after the raids occurred they still have no clarity around whether they are going to be charged," Mr Morris said.

Former military lawyer David McBride is facing five charges for allegedly giving details of the alleged war crimes to the ABC.

The ABC had argued the June 5 raid was invalid, the seizure of its information was unlawful and AFP officers were not entitled to examine what they had taken.

One of the ABC's four key arguments was the Crimes Act does not authorise "the issue of a search warrant in circumstances that disproportionately burden the implied constitutional freedom of discussion of government and political matters".

Justice Abraham ruled: "each of the four heads of challenge fails".

She said the ABC's "submission elevates source protection to a position which, on the current state of the law, it does not have".

And she ruled part of the media union's code of ethics which states journalists should never reveal a confidential source, even under court order, "cannot apply in absolute terms".

The ABC argued the Afghan Files were important stories for the public to know, their contents were accurate and they did not "diminish the effectiveness of the ADF".

"This submission, which focuses attention on the value or merit of the publications, has a tendency to distract from the real issues," Justice Abraham said in her ruling.

It is understood the AFP will not access the material on seized USB drives until the ABC had time to lodge an appeal if it wanted to.

In a statement on Monday it said "the AFP respects the decision of the Federal Court".

News Corp Australia has mounted its own challenge in the High Court against the warrant used to raid on Ms Smethurst.

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