While AFP acting commissioner Neil Gaughan has not ruled out charging Smethurst and senior ABC reporters Dan Oakes and Sam Clark, there has so far been little evidence that police have been actively pursuing criminal charges against anyone other than the people who provided the information to the journalists.
However, emails between officers suggest the act of publication – not just leaking – has been a focus of the police investigations.
A detective sergeant from the AFP’s “sensitive investigations” unit emailed communications staff on June 4, the morning after the raid on Smethurst’s home, to thank them for their service and predict another busy period once the AFP raided the ABC’s Ultimo headquarters later that day.
One staff member wrote back: “Reporting hasn’t caught up on the publishing offence – many still think she’s just doing her job.”
Attorney-General Christian Porter last month said “there is absolutely no suggestion that any journalist is the subject of the present investigations”.
The raid on Smethurst’s home followed a 2018 report about discussions inside the Department of Defence and Department of Home Affairs about giving Australia’s domestic cyber spies broader powers.
The leak was promptly referred to police, who, according to emails, assessed the request and deemed its impact “routine” and value to the AFP “low”. Within four days, the investigation was officially declared a “corruption” incident of “critical” impact and “high” value to police.
An AFP spokeswoman declined to provide further information about why the investigation suddenly received a more serious status, citing the ongoing nature of the probe.
Tactical planning assessments show the AFP was concerned about a backlash following the execution of the search warrants, but rated the interest and potential brand damage as “moderate”.
Other documents reveal officers were armed when they entered Smethurst’s home as well as the ABC’s headquarters in inner Sydney.
‘Talking points” – a series of answers to likely media questions – noted that police were required under AFP rules to be armed in the execution of their duty.
The talking points also claimed the police officers who entered Smethurst’s home “behaved appropriately and in accordance with their responsibilities and legal obligations” – but this statement was written well before the raid was carried out.
The AFP had planned a similar raid on News Corp Australia’s Surry Hills headquarters but decided not to proceed.
As the fallout from the operations grew, acting commissioner Gaughan held a press conference in Canberra to defend the conduct of his officers. He confirmed journalists and media organisations subject to the search warrants may have committed a crime by publishing sensitive information that had been leaked to them, but stressed no decision had been made whether to prosecute.
He also noted federal law allowed for a potential public interest exemption for journalists but could not say whether it would apply in these cases.
Nine chief executive Hugh Marks, ABC managing director David Anderson and News Corp corporate affairs director Campbell Reid met with the Attorney-General at Parliament this week but were not given a guarantee that the journalists would be spared prosecution.
For a person to be prosecuted under the relevant criminal law, the Commonwealth Director of Public Prosecutions (DPP) must independently recommend charges and the attorney-general must then provide consent.
Mr Porter told The Sydney Morning Herald and The Age last month that he would be “seriously disinclined” to authorise the prosecution of journalists.
Kylar Loussikian is The Sydney Morning Herald’s CBD columnist.
Bevan Shields is the Federal Editor and Canberra Bureau Chief for The Sydney Morning Herald and The Age.