National security leaking and the Farrell case
16 May 2016|

The other week, ASPI’s Cesar Alvarez and Simon Norton published a cogent argument for the greater protection of Australia’s private and public sector whistle-blowers. With startling statistics, Cesar and Simon highlight that:

‘…of the 80% of Australian employees who feel ‘personally obliged’ to blow the whistle, only 49% would actually do so.’

While there’s no globally accepted definition of whistleblowing, most people would likely accept the definition put forward by a 1994 Senate committee: ‘the disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers to persons that may be able to effect action.’

As a nation, we don’t have a good track record for protecting whistleblowers. There should be little surprise in public sector circles that the leaking of information to the media is a much safer option than whistleblowing because anonymity can be maintained. But leaks have increasingly become a tool of politics, not an act to right a wrong. As we enter the federal election period, there are going to be plenty of temptation for public servants and staffers to leak information to the media.

In 2013, then Public Service Commissioner Steve Sedgwick made the Commonwealth’s perspective on information disclosure clear:

‘The default assumption is that—unless there are good public interest reasons to the contrary—the business of government will be public and knowable.’

But there are also many aspects of government that must be kept confidential in the interest of national security.

So when it comes to public sector leaks, we have people who feel that their employers have acted illegally, immorally or illegitimately and that to effect action, while protecting their identity, they need to leak information. On the other side we have the agencies charged with keeping our national secrets safe. Then we have the Australian Federal Police who are responsible for investigating incidents where official information has, without authorisation, been disclosed to the media.

Investigating leaks isn’t an easy task for the AFP, which has had precious few successful prosecutions. Identifying and proving who had access to specific information is difficult. But even more difficult is proving, beyond reasonable doubt, who leaked information, and how and when a piece of information was leaked to the media. But with changes to data retention laws and improved access to metadata, things may get easier for the AFP. And this likely spells trouble for journalists trying to protect sources.

Imagine how distressing it would be to see your name appear, over and over again, in hundreds of pages of AFP documents. Journalist Paul Farrell knows this feeling all too well. Earlier this year, he published an article in The Guardian that contained sensitive, and most likely classified, official information leaked to him by a confidential government source.

Farrell’s account of the AFP documents—and an AFP fact check—reveal that the police are undertaking a criminal investigation into a Commonwealth criminal offence to identify and charge the source of the leak.

Freedom of the press isn’t under threat. Farrell isn’t under investigation, and he’s not being accused of committing any criminal offence.

But having your privacy probed like this would be incredibly intrusive. Farrell’s confidential source reportedly provided information that indicated that the Australian Border Force vessel Ocean Protector had gone far deeper into Indonesian waters than the government had disclosed. Farrell reported the information in April 2014.

Yet the leaked information didn’t belong to the person who leaked it, but to the Commonwealth. The person who leaked the information to Farrell wasn’t authorised to do so by any Commonwealth official. Given the published facts and the way in which the information was passed to the media, it’s reasonable to assume that the source involved was as aware as Farrell that the leak may have constituted a criminal offence.

Farrell argues that the leaked information reveals that the review into Ocean Protector’s incursion into Indonesia’s waters was flawed and therefore his source’s actions are justified by the public’s interest in the matter. I’m not privy to the details of this incident but it appears that the leak had an impact on national security: the revelations alleged in Farrell’s article adversely impacted on our relationship with Indonesia.

Farrell’s source would have expected that the matter would be referred to the AFP for investigation. And that’s what occurred.

Farrell has a strong obligation not to burn his source. But this doesn’t mean that the leak can’t or shouldn’t be investigated by the AFP to identify the source.

If there’s any mitigating circumstances for the leak, then there’ll be ample time for this to be considered should the source of the leak ever be identified and charged. Given the AFP’s track record with leak cases, it’s doubtful if it will ever come to this.

My argument is unlikely to sway the perspectives of journalists. Sure, journalists themselves aren’t under investigation but neither, as argued by Cesar and Simon, are they being adequately protected. For journalists this case highlights a worrying trend. If the AFP are going to access metadata and telecommunication records in leak investigations, then Australia’s journalists are going to need to be a lot more tech-savvy if they’re to maintain their source’s anonymity.

Australia’s national security agencies are unlikely to be entirely supportive of my colleagues recommendations for overcoming the fear of whistleblowing when it comes to matters categorised as having ‘national security’ implications. With an election campaign underway, the Farrell case might give pause to potential leakers—a deterrent effect that would be welcomed by departmental heads and their political masters alike.