As usual with a leak inquiry, it’s not clear that the AFP means to solve the crime. It could be too embarrassing.
(This article was posted two weeks ago in the Canberra Times but it is still very relevant. JM)
Here’s a tip free of charge for the cops investigating a bureaucratic proposal to extend the Australian Signal’ Directorate’s spying powers on Australian citizens: Cherchez le Pezzullo-haters
That is not to suggest for one second that Pezzullo, secretary of the department of Home Affairs, and the complainant in the leak investigation, is in any way the source of the leak. But it was he, and his view of the world, which was most damaged by the leak, which, while being simultaneously absolutely denied, later “reinterpreted” by officials, then ruled out of court by the then prime minister, Malcolm Turnbull.
One rule of finding the source of the leak is by asking who benefits. In this case it was the Australian population at large, probably too big a target for investigation, even for the surveillance state, set up in the name of defeating terrorism and paedophilia, that Pezzullo seems to favour and want to control. But if you cannot find out who benefits, one then moves on to asking who suffers. Although the article in The Australian also provided information which reflected ill on the political judgment of Greg Moriarty, secretary of Defence, and Mike Burgess, head of ASD. But given Pezzullo’s efforts to drive and dominate the national security debate at the time, it seems a safe bet that the person putting the matter into the public domain, via a trusted journalist, Annika Smethurst, was wanting to nobble him. Pezzullo’s efforts to set the agenda tend to founder when exposed to open discussion and debate – one of the reasons, I imagine, why he is so obsessed with leaking, sometimes even seeming to dob in his minister and his staff as the most likely suspects. .
Ms Smethurst intimated that she had seen copies of the interchange between the secretaries, or something very close to it. We have been given to believe that the documents in question were labelled AUSTEO – or [To be seen by] Australian Eyes Only. Leaving aside whether such correspondence was appropriately classified, It is obvious that only a very restricted number of officials would have had access to the documents, or known of the proposals they contained. They would have been senior, not junior, officials in Defence, Home Affairs, Attorney-General’s (and perhaps in the secret intelligence service, ASIS, located inside Foreign Affairs).
The great ABC leak massacre, involving apparent crimes by SAS solkdiers in Afghanistan is not as such a dilemma for the AFP Sherlocks. The leaker is known; he was a whistleblower. The problem for the AFP, if the case proceeds, is that a jury might ignore an over-officious law to decide either that leaking was in te public interest – which it undoubtedly was – and that the documents could only have been categorized as a bit of arse-covering. Too many cases like that, and popular support for draconian – innocent until proven guilty – penalties for leaking, or leaking classified documents, will collapse.
I have seen the odd leak in nearly 50 years of journalism. I have also seen the odd leak investigation. Most of the time, investigators are merely going through the motions, confident that the government doesn’t really want to know who the rat is, because it is almost certainly one of themselves. The only thing worse than not knowing who is betraying you is knowing and not being able to do much about it.
The AFP, in any event, lacks the skill, and the will, to carry out leak investigations (even of itself) to successful prosecution. On the few occasions when police “solve” a leaking crime, the person accused is very junior, or is a genuine whistleblower who took no efforts to conceal herself, or was associated with the other side of politics. Or, if with the AFP, was out of favour with the good old boys and girls running an organization of limited competence, poor leadership, a lack of professionalism and genuine independence, and without much in the way of checks and balances.
This is perhaps because those fingered might point to other cases of “authorised” (if strictly illegal) leaking by others in the organization. Most everybody leaks when it suits.
Overwhelmingly, leaks come from ministers, their senior staff and senior bureaucrats – mostly people in a position to release the information officially, if they wanted. They do not want, because they want the leaked information to anonymously damage or hurt some argument going on, or the person or persons propounding it. Or they leak to promote their own view of the world, and to improve their own reputation, usually at someone else’s expense. Hence the cui bono and the cui malo tests.
Some people leak for practice, for idle mischief, for credit at the the bank with some reporter, to discharge some favour owed, or sometimes for some Machiavellian purpose equivalent to having a chess strategy four moves ahead. Sometimes people leak to throw suspicion of being a leaker away from themselves. Some people leak because they see some government action as inherently wrong, or silly, or perhaps corrupt, and they believe that public exposure will bring it all to a halt. Some people leak as a form of revenge against particular officials, or as a payback when their career has stalled, or they see themselves as having wrongly suffered because of the actions of the person leaked against. In such cases, the intended victim of the leak may not be a big gun so much as someone who will also suffer from the consequences.
There are also these days semi-official leaks, sometimes called drips. These are journalists who have been given advance notice of announcements, or inside knowledge of government plans or thinking, in exchange for uncritical coverage, usually without giving the other side any opportunity to comment. Some Murdoch journalists, even very senior ones, are described as mere stenographers by their colleagues, and some of them appear to be, in effect, party plants embedded in the media.
Whether these, or some other journalists, favouring the other side of politics but likewise without any predisposition to be fair to both sides, are simply unprofessional, unaware of their obvious prejudices, or are self-righteously pursuing some cause excusing them from being fair-minded, is not always clear. I do not mean by this that every reporter or every commentator has a duty to be straight down the middle and utterly impartial. But even (or especially) the advocate or analyst must be fair-minded, state facts correctly, and deal with arguments to the contrary of what they are propounding. The ones who do not are mere propagandists, not journalists. That doesn’t stop leakers making a beeline for their door.
In any event, the leaker of the ASD was probably of about the same rank as Pezzullo, or one of his superiors. (that is a minister) or someone in the inner court of the Pezzullo or Moriarty kingdom. That is to say a closely trusted henchperson. Some might not be treacherous as such – so much as loyal to another person, or another outcome. Few could be called disloyal to their country, or to the real national interest.
Alas for the crime-busters, searching for the leaker among Pezzullo haters might not much narrow the cast of suspects. Pezzullo is not greatly admired by all his peers, or by all of the ministers likely to have been in the know 15 months ago. A few of them would not have hesitated to damage him if they thought they could get away with it. For some, it might be a bonus if they incidentally also damaged his minister, Peter Dutton.
The confidence that they might be able to get away with it might have been assisted by their understanding of security procedures and how leak investigations work, and their realisation of the dismal record of the AFP, and its leadership, when it comes to leak investigations, or of any crime fighting which might make them enemies inside government.
The leak occurred during the papacy of Blessed Malcolm Turnbull, when the government was not, as now, closely united, and of one mind around a charismatic messiah knowing exactly what to do. If I was investigating it, I’d go for someone cynical about Pezzullo’s empire building ways, and the further expansion of a secret nation within a nation, regarding itself as being under siege from within and without. Many Liberals do not have an apocalyptic world view or think that the nation is safe only when we are scared to hell.
Nor do they necessarily agree that we need a new metaphorical Brisbane Line, by which we blow up most of the nation’s traditions and values, and rights and freedoms, to protect the much smaller package of rights and freedoms they value. Even inside the national security tent are many officials, and politicians, who don’t see things the Pezzullo way.
The public has been tolerant, because of the climate of fear about terrorism, of greater powers for security agencies. But many are much more cynical about the judgment of those in charge. They tend to trust individuals with some track record of common-sense judgment – and this trust does not necessarily transfer to that person’s replacement. It is by no means clear that the public adopts, as some absolute value, the right of generals to censor coverage of war or boat turnbacks, or of officials – still less politicians – to decide what members of the public should be allowed to know about what they do.
Inside the secret state is a culture of unaccountability, of resistance to external scrutiny, and of compulsive secrecy. Not for nothing has the New York Times declared that Australia may well be the world’s most secretive democracy, the recent raids being just the latest example of how far the country’s conservative judgment will go to scare officials and reporters into submission.
The AFP has, of course, piously declared that its post-election raids had nothing to do with ministerial direction; and that the government was not told about the raids beforehand. Its acting commissioner, Neil Gaughan, denies any attempt to intimidate the media. Accepting Gaughan’s statement, this represents an advance on the AWU raids of 2017, when the AFP gave ministers a “heads up” because it might have political consequences. The staff of two ministers were implicated in tipping off friendly media, but the DPP declined to prosecute.
Gaughan’s statement was carefully worded and did not seem to deny that non-AFP bureaucrats had foreknowledge of the raids. This would probably have included Pezzullo, a hands-on chap who has never seen any limits to his jurisdiction, whose department oversees the AFP and who is the complainant in many leak inquiries. But Gaughan’s statement cannot be read as asserting that no political considerations were involved in the timing of the raids, only weeks after the government was returned. All he said and meant was that the cops received no direction from outside. AFP dependence on budget funding, particularly in these straightened times when the AFP has significantly exceeded its budget, has made it acutely aware of how political see political considerations.
Can one imagine, for instance, that AFP management would have allowed, or the investigators themselves wanted, to have staged such raids during the election campaign? One way or another, that would have caused a bigger furore, and accusations of AFP playing politics. So someone decided to go after the elections. Others might wonder why it has taken more than a year for the AFP to galvanise itself for an inquiry. Surely if there was a genuine threat to the nation’s security arising out of the embarrassment of Pezzullo, Moriarty and ASD, the leak should have been sealed long ago? Did politics affect the timing of beginning an active investigation?
And might the timing have been different, or there been no noisy raids, had a Labor government been in power? There’s a different dynamic of political sensitivity (for Labor) of raids on the media and leaks whose work was focused on the previous government?
I am not so sure that Labor would have – if it could have – cautioned strongly against the raids. Shadow attorney-general Mark Dreyfus has a strong record, in opposition, of speaking out for freedom of speech, civil liberties and security over-reach. But he was never noted, in power, for standing up to officials, or police, over anything. Perhaps this was for fear of Labor’s being wedged by the coalition, but the result of this timidity – really since 2001 – has been an impoverished debate over the real issues about the reach of government surveillance, the extent, and the checks and balances, on official surveillance, and the ever increasing, and increasingly unaccountable, powers of police and security agencies. Perhaps the AFP would have tried the raids on, without notice to the government, simply to test the temperature, and, perhaps re-establish its usual moral ascendancy over its minister. The rewards, as ever with supine ministers, is lots of media opportunities with fake triumphs in the war against crime.
I do hope, incidentally, that the inquiries into the leaking to the ABC of documents suggesting dishonourable conduct by SAS soldiers – the general source of which is known – does not trip over any leaking from among the battalions of former SAS officers still in public life emphasizing that they personally were always with the good angels. Apparently these were all disgusted by evidence of a new warrior culture contemptuous of human rights, life and dignity. No doubt these clarifications help clear up the record, but it is just possible – if the materials leaked to the ABC were properly classified as Top Secret – that their expression was likewise illegal.
Do the raids represent the greatest threat to a free media since the arrest of John Wilkes? I doubt it, for a number of reasons. First, I doubt that the AFP has the stomach to solve the crime – if crime there was or ought to be, which I doubt. Even less likely is the prospect of the DPP agreeing to prosecute – that other great protection for AFP failure. The DPP is up to her armpits in the prosecution of Bernard Collaery and Witness K — a case that is already doing serious damage, here and abroad, to our national security bona fides, and our sense, or hope, that what is left of a reduced and diminished justice system can and will stand up to government tyranny and oppression.
She may well judge – as politicians and senior bureaucrats usually do — that the signal effect of well-publicised raids, media breast beating, and inconsequential detecting will serve the primary purpose of such things – of terrifying potential leakers, particularly conscience-leakers or whistleblowers with the possibility, however remote, of being caught. Success breeds martyrs, and public sympathy, and if anything, spurs the diminishing numbers of journalists on. There is nothing quite like the professional cachet and pride of having been raided.
Jack Waterford is a former Editor of The Canberra Times