Of public interest

The facts of the case are unfathomable, when you lay them out: the real prospect a journalist could be charged for reporting on credible allegations of war crimes committed by Australian troops.

But this is where things now stand, with the Australian Federal Police sending a brief of evidence to the Commonwealth Director of Public Prosecutions, detailing a case against ABC journalist Dan Oakes for his reporting on the “Afghan Files”.

The documents leaked to Oakes alleged brutal violence by Australian Defence Force personnel – the unlawful killing of Afghan citizens, the maiming of bodies of dead Taliban fighters. The public interest argument for publishing these allegations was clear to anyone who read his reporting.

But how it serves the public to prosecute Oakes for doing his job has never been articulated by the government. Nor has the government offered sufficient explanation as to why the threat of prosecution was held over him – and his producer, Sam Clark – for so long.

It has been more than a year since the AFP raided the ABC’s Sydney headquarters, seizing documents related to the Afghan Files. It has been more than 650 days since Oakes and Clark were first told they were “suspects” in a Federal Police investigation because of their reporting on the war crimes allegations.

In this time, as ABC managing director David Anderson pointed out this week, the investigation’s “accuracy has never been challenged”.

Instead, hundreds of witnesses have been interviewed as part of an inquiry by the Inspector-General of the ADF into allegations that Australian troops breached the law while on tour in Afghanistan between 2005 and 2016.

A report, tabled to parliament in February, revealed the probe is investigating at least 55 incidents, “predominantly unlawful killings of persons who were non-combatants or were no longer combatants, but also ‘cruel treatment’ of such persons”.

Defence is now bracing for the IGADF’s inquiry, conducted by Justice Paul Brereton, to recommend police investigate at least some of these incidents. But the Brereton report may still be months away.

So now we face another unfathomable prospect: that Dan Oakes could be charged before those accused of the crimes that he reported on.

The attorney-general, Christian Porter, has said in the past that he would be “seriously disinclined to approve prosecutions of journalists, except in the most exceptional circumstances”. He promised to “pay particular attention to whether a journalist was simply operating according to the generally accepted principles of public interest journalism”.

If reporting on alleged war crimes does not pass the threshold of public interest journalism, the government’s definition is unsound.

This article was first published in the print edition of The Saturday Paper on Jul 4, 2020 as "Of public interest".

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