The Australian is trying to prevent the Victorian Office of Police Integrity from briefing Commonwealth and state directors of public prosecutions about a “serious criminal offence”, allegedly committed during the research for reporter Cameron Stewart’s terrorism scoop of August last year.
In the Melbourne registry of the Federal Court yesterday afternoon it was revealed that the OPI next Friday plans to brief prosecuting authorities with a view to charges being laid. The Australian is seeking court orders to prevent this.
The key evidence is a transcript of an interview between the OPI and Stewart. In court yesterday the OPI’s lawyers said that in this interview information was given voluntarily — without the OPI using its coercive powers.
It is understood (but was not stated in court yesterday) that Stewart and The Australian vigorously dispute that this interview was voluntary. Stewart is subject to a restraining order that prevents him from talking about what occurred in his interview and is thus unable to defend himself.
The case concerns Stewart’s scoop of August last year, in which he broke the news about a counter terrorism operation on the very morning of raids in which four men were arrested, accused of plotting to bomb an army base.
Yesterday in court, lawyers for Nationwide News and The Australian editor Paul Whittaker argued for amendments to an existing injunction that is preventing the OPI from releasing a report of its investigation into the leak that informed Stewart’s report. That report is highly critical of The Australian.
Nationwide News now also wants the OPI restrained from passing information from its investigation to the Commonwealth and state directors of public prosecutions.
The Australian claims that the investigation was fatally flawed. In the face of this, the OPI is making much of the assertion that the “key piece of evidence” was given voluntarily and therefore might be able to be used even if the court finds that other aspects of the investigation were invalid.
Meanwhile, the OPI is asking the court to allow it to release an abridged report, laying out the facts of the case — including the conclusions it reached as a result of the key interview.
My Wednesday article in Crikey on the affair has been submitted to the court, with lawyer for the OPI, Peter Hanks QC, asking Judge Michelle Gordon whether it was right that the public had to be informed by Crikey, rather than by the OPI being allowed to report to Parliament.
The investigation into Stewart’s leak was conducted jointly by the OPI and its federal counterpart, the Australian Commission for Law Enforcement Integrity.
The “end-game” of the present Federal Court litigation is an attempt by Nationwide News to have that investigation declared fatally flawed, and all the evidence that was gathered by ACLEI and the OPI permanently suppressed.
The OPI is arguing that the Federal Court should not restrain its director Michael Strong from fulfilling his statutory responsibility of reporting to Parliament, nor from carrying out law enforcement functions including briefing prosecuting authorities.
As reported in Crikey on Wednesday, the ACLEI has, as Judge Gordon described it in yesterday’s hearing, “tapped the mat” and cut a deal with The Australian in which it is released from the current litigation in return for agreeing not to release any of the information gathered during the inquiry.
The ACLEI has told Crikey it will write a new report on the affair — but has not said when this will be done or whether it will be publicly released.
Yesterday in court, Judge Gordon described ACLEI’s action as “pragmatic” in the face of the disputed validity of the investigation, and queried why the OPI would not take a similar approach. But Hanks responded that his client “could not” take a similar path because it would not be a proper exercise of statutory responsibilities.
Hanks tried to persuade Judge Gordon to look at the “key piece of evidence” at the heart of the case, this being the transcript of the OPI’s interview with Stewart. If she looked at this, the voluntary nature of the evidence and the seriousness of the offence would be clear, he said. Gordon did not make a decision on this.
Judge Gordon indicated she would rule next Tuesday on the issues of whether the OPI is to be restrained from briefing the directors of public prosecutions and on the OPI’s application to be allowed to issue an amended report.
The case as a whole has been set down for hearing from May 7.
The case also involves jurisdictional and constitutional issues, with the OPI arguing that the Federal Court does not have the power to stand between the state parliament and its officer, the Director of the OPI.
It is possible that attorneys-general from other states and the Commonwealth may intervene in the action on this ground. Hanks said that NSW, Tasmania and the Northern Territory had indicated they would not intervene, but South Australia, Queensland and Western Australia had yet to make a decision.
On the other hand, Nationwide News is arguing that because the initial investigation was conducted jointly by the ACLEI and the OPI, the Federal Court has “accrued jurisdiction” because of the involvement of a federal agency.
You can’t help but wonder, would there be more sympathy for “Limited News” if they abided by the standards they trumpet, that they expect others to abide by, while ignoring them themselves.
Open government is the cornerstone of our Westminster style parliamentary democracy and one of the key channels of information available to the general public is through a free press, which of course includes electronic media, television and the internet being vital.
In this instance, government agencies carrying out investigative analysis of what appear to be security breaches should not be constrained by self-interested media proprietors who have been caught out apparently breaching undertakings in relation to an authorised leak of information from a police officer involved in an impending security sweep in relation to alleged terrorism.
It is therefore regrettable that the Australian from the Murdoch stable which trumpets “Fair and Balanced” on some not all of it media channels should be so determined to keep out of the public arena information which is arguably in the public interest but is apparently detrimental to the Australian newspaper.
We have to say “apparently” because we are not party to the actual results, but I’m mindful of the old proverb ” when you see smoke there must be fire”.
It calls into question the integrity of “The Australian” as an instrument of journalism rather than as a propaganda sheet for its master. If the media presume to sit in judgement on others in the community, they must be like Caesar’s wife,” not only pure but seen to be pure”. Grubby suppression orders do not inspire confidence.
What a huge and protracted effort on the part of News. If only similar effort was put into – for example – reviewing the operation of immigration law in respect of forced immigrants, aka refugees, and their rights and those of their jailers.
Our adversarial legal system at its best. All that money, effort and misdirected resource being expended to suppress the truth rather than bring it into the light of day. Makes the courts look like playpens for the priviledged.
Oops. Pardon the typo.