Questions on Notice for the Australian Federal Police Examples of Unauthorised Disclosure Investigations Annika Smethurst

UNCLASSIFIED

Questions on Notice for the Australian Federal Police Examples of unauthorised disclosure investigations Annika Smethurst

In relation to the unauthorised disclosure of information regarding the proposal to expand the powers of the Australian Signals Directorate (“the Annika Smethurst matter”):

1. When did the alleged unauthorised disclosure of information take place?

The AFP have provided a classified response, as the timing of the alleged disclosure is a central fact in issue that needs to be proven in any criminal prosecution and it may also be relevant to current civil proceedings.

2. What did the referral to the AFP from the Department of Defence (copying the Secretary of the Department of Home Affairs) say?

A copy of the referral to the AFP from the Department of Defence was provided to the Committee on 27 August 2019 in response to a question on notice taken at the public hearing on 14 August 2019.

3. Was Annika Smethurst mentioned as a “suspect” in the referral?

No.

4. Who did the referral ask the AFP to investigate? The alleged leaker, Annika Smethurst or both?

The referral did not specify who the AFP should investigate.

5. Please provide a copy of the referral.

A copy of the referral to the AFP from the Department of Defence in relation to Ms Smethurst was provided to the Committee on 27 August 2019 in response to a question on notice taken at the public hearing on 14 August 2019.

6. When did the AFP make the decision to launch a full investigation into the leak?

The AFP made a decision to commence an investigation into this matter on 8 May 2018.

7. Has the AFP obtained any covert warrants in relation to Annika Smethurst? If so, when were those warrants obtained?

UNCLASSIFIED UNCLASSIFIED

The AFP is not able to comment on sensitive aspects of investigations that have been, are being, or are being proposed to be undertaken by the AFP. Such sensitivities include the use of statutory powers and the extent to which such powers may be used, or not used, in relation to those persons under investigation.

8. Did the AFP seek access to any person’s telecommunications data for the purposes of confirming – or attempting to ascertain – whether that person disclosed information to Annika Smethurst? If so: a. How many people’s telecommunications data was accessed by the AFP for that purpose?

b. Did the AFP obtain a journalist information warrant for any of that activity?

No journalist information warrants were obtained in relation to this investigation. Under section 185D of the Telecommunications (Interception and Access) Act 1979 a copy of any journalist information warrant issued to the AFP must be given to this Committee as soon as practicable.

9. Did the Department of Home Affairs or Defence provide the AFP with any evidence that Ms Smethurst’s story had caused any harm to anyone?

The Australian Signals Directorate provided the AFP with information on actual and potential harm in relation to the unauthorised disclosure.

10. Do you have any evidence that Ms Smethurst’s story caused any harm to anyone?

As above, the Australian Signals Directorate provided the AFP with information on actual and potential harm in relation to the unauthorised disclosure.

11. Mr Gaughan has said that “public interest is something that we look at in relation to our investigations from the outset”. What factors did the AFP consider at the outset of this investigation into Annika Smethurst?

The AFP evaluates and prioritises all allegations of criminal wrongdoing objectively at the organisational level in accordance with an established evaluation process. This determines whether the AFP will:

UNCLASSIFIED UNCLASSIFIED

o allocation of resources to higher priority matters o likelihood of successful prosecution o not in the public interest  reject the matter

The Case Categorisation and Prioritisation Model (CCPM) is also applied during the evaluation of a referral. The CCPM describes the essential characteristics of operational matters that affect the referral and selection process. The factors that are taken into account in the CCPM assessment include:

 Resources  The impact of the alleged offending on Australian society  The likelihood of success in an investigation  Whether an alternative to criminal investigation is appropriate  The impact of the alleged offending on Australian society  Whether an alternative to criminal investigation is appropriate

A CCPM rating is completed at the time of referral and is also revised when any aspect of the matter changes significantly.

12. Why did the AFP decide it was in the public interest to investigate this unauthorised disclosure?

The Case Categorisation Priority Model (CCPM) assessment recorded against this referral indicates the following assessments were made:

 Categorises - Unauthorised disclosure by Commonwealth Public Officials under the category of Corruption  Impact on the Client was CRITICAL.  Investigations Priority was ESSENTIAL  Impact of the Investigation was HIGH  Value of the investigation to the AFP was HIGH

Based on this CCPM assessment the AFP decided to commence an investigation.

13. In respect of the leak itself, how many potential suspects did the AFP identify at the outset of its investigation?

14. Mr Gaughan said at the public hearing on 14 August 2019 that “…we don’t accept just a referral. We ask ‘Before you refer, have you done certain things, with your own due diligence, within the department?’ And that needs to come with it”.

UNCLASSIFIED UNCLASSIFIED

a. What had the Department of Defence done before it referred the matter to the AFP?

The AFP understands the Australian Signals Directorate undertook (which at the relevant time was part of the Department of Defence) their own initial enquiries to determine the classification and ownership of the documents. Any further question should be directed to the Australian Signals Directorate.

b. Specifically, what due diligence had the Department of Defence done before it referred the matter to the AFP?

As above, the AFP understands the Australian Signals Directorate undertook (which at the relevant time was part of the Department of Defence) their own initial enquiries to determine the classification and ownership of the documents. Any further question should be directed to the Australian Signals Directorate.

c. What had the Department of Home Affairs done before the referral to the AFP?

The Department of Home Affairs is the best placed to answer this question.

d. Specifically, what due diligence had the Department of Home Affairs done before the referral to the AFP?

The Department of Defence is the best placed to answer this question.

15. Prior to executing the search warrant on Ms Smethurst’s home in June 2019, had the AFP previously obtained any search warrants in relation to Ms Smethurst that it had decided not to execute?

The validity of the warrant executed on Ms Smethurt’s residence is currently the subject to challenge in the High Court. Therefore, it would be inappropriate to provide further comment which may have an impact on these proceedings.

16. Did the government subsequently declassify all or part of the document cited by Annika Smethurst in her story on 30 April 2018?

The AFP is not aware of the relevant document cited by Annika Smethurst being declassified.

17. How much has this investigation cost the taxpayer?

This answer was previously provided to the Committee on 27 August 2019 in response to a question taken at the public hearing on 14 August 2019.

However, as the investigation is ongoing costs continue to be incurred.

UNCLASSIFIED UNCLASSIFIED

18. Please provide the following information: a. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and the Minister for Home Affairs (or his office) in relation to the Annika Smethurst matter;

On 1 July 2019, the AFP provided the Minister for Home Affairs with a general briefing on the proceedings against the AFP in the High Court and the Federal Court respectively in relation to the search warrants executed on 4 and 5 June 2019, and the public comments made by the Attorney- General on 19 June 2019 in relation to the investigation.

b. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and any other Minister (or Minister’s office) in relation to the Annika Smethurst matter, along with the identity of the relevant Minister;

On 4 June 2019, Assistant Commissioner Debbie Platz advised the Minister for Home Affairs office that a search warrant had commenced and to expect media activity.

On 3 July 2019, AFP Deputy Commissioner Neil Gaughan attended a meeting with the Attorney-General to discuss the public comments made by the Attorney-General on 19 June 2019.

c. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and the Secretary of the Department of Home Affairs (or his office) in relation to the Annika Smethurst matter; and

On 30 April 2019, the Secretary of Defence referred News Corp reporting to the AFP for investigation, copying in the Secretary of Home Affairs.

d. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and the Secretary of the Department of Defence (or his office) in relation to the Annika Smethurst matter.

On 30 April 2019, the Secretary of Defence referred NewsCorp reporting to the AFP for investigation.

Further details of communication between the AFP and the Department of Defence is sensitive operational information. Therefore, the AFP is not in a position to provide further details to the inquiry.

Note: for the purposes of question 18: - “in relation to” includes any communication that referred to the Annika Smethurst matter; - “communication” means any written or unwritten communication; and

UNCLASSIFIED UNCLASSIFIED

- “every communication between” includes every relevant communication from or to the AFP.

UNCLASSIFIED UNCLASSIFIED

ABC Investigation

In relation to the unauthorised disclosure of information which led to the publication of “the Afghan Files” story (“the Afghan Files matter”):

19. When did the alleged unauthorised disclosure of information take place?

The timing of the alleged disclosure is a central fact in issue that needs to be proven in the criminal prosecution and may be relevant to civil proceedings. The AFP is not in a position to provide further details to the inquiry.

20. When was the matter referred to the AFP?

This matter was referred to the AFP on 11 July 2017.

21. Who referred the matter to the AFP?

The Afghan Files matter was referred to the AFP by the Department of Defence, specifically, Acting Secretary Phillip Prior and Air Chief Marshal MD Binskin, AC.

22. What did the referral to the AFP say?

A copy of the referral to the AFP from the Department of Defence was provided to the Committee on 27 August 2019 in response to a question taken at the public hearing on 14 August 2019.

23. Was Dan Oakes, Sam Clark or any other journalist mentioned as a “suspect” in the referral?

The referral did not specify who the AFP should investigate.

24. Who did the referral ask the AFP to investigate? The alleged leaker, the ABC journalists or all of them?

The referral did not specify who the AFP should investigate.

25. Please provide a copy of the referral.

A copy of the referral to the AFP from the Department of Defence in relation to the Afghan Files matter was provided to the Committee on 27 August 2019 in response to a question on notice taken at the public hearing on 14 August 2019.

26. When did the AFP make the decision to launch a full investigation into the leak?

UNCLASSIFIED UNCLASSIFIED

The AFP made a decision to investigate this matter on 19 July 2017.

27. Has the AFP obtained any covert warrants in relation to Dan Oakes, Sam Clark, any other ABC journalist or the ABC itself? If so, when were those warrants obtained?

28. Did the Department of Home Affairs or Defence provide the AFP with any evidence that the ABC story had caused any harm to anyone?

The Department of Defence provided the AFP with information on actual and potential harm in relation to the unauthorised disclosure.

29. Do you have any evidence that the ABC story caused any harm to anyone?

The Department of Defence provided the AFP with information on actual and potential harm in relation to the unauthorised disclosure.

30. Mr Gaughan has said that “public interest is something that we look at in relation to our investigations from the outset”. What factors did the AFP consider at the outset of this investigation into Dan Oakes, Sam Clark and the ABC?

 investigate  refer the matter to a partner agency and, if so, whether AFP will collaborate in a joint investigation  record it as a criminal matter without investigation due to: o the level of criminality o allocation of resources to higher priority matters o likelihood of successful prosecution o not in the public interest  reject the matter

The Case Categorisation and Prioritisation Model (CCPM) is also applied during the evaluation of a referral. The CCPM describes the essential characteristics of operational matters that affect the

UNCLASSIFIED UNCLASSIFIED

referral and selection process. The factors that are taken into account in the CCPM assessment include:

A CCPM rating is completed at the time of referral and is also revised when any aspect of the matter changes significantly.

31. Is it still possible that Dan Oakes could be charged in relation to the Afghan Files matter?

At the Committee hearing on 14 August 2019, the Commissioner answered a similar question in relation to the possibility Ms Smethurst may still be charged.

In accordance with the Commissioner’s answer to the Committee on that occasion, when the AFP is conducting an investigation, there is a range of phases the investigation goes through. One of which is a discovery phase, where the AFP collects evidence in relation to people we believe may have committed an offence. As this is an ongoing investigation we cannot rule anything out.

32. Is it still possible that Sam Clark could be charged in relation to the Afghan Files matter?

Please see response at QoN 31.

33. Is it still possible that any other ABC journalist (other than Dan Oakes or Sam Clark) could be charged in relation to the Afghan Files matter?

Please see response at QoN 31.

34. Why did the AFP decide it was in the public interest to investigate this unauthorised disclosure?

The Case Categorisation Priority Model (CCPM) assessment recorded against this referral indicates the following assessments were made:

 Category - Unauthorised disclosure by Commonwealth Public Officials under the category of Corruption  Impact on the Client was SIGNIFICANT  Investigations Priority was ESSENTIAL  Impact of the Investigation was HIGH  Value of the investigation to the AFP was HIGH

UNCLASSIFIED UNCLASSIFIED

Based on this CCPM assessment the AFP decided to commence an investigation.

35. In respect of the leak itself, how many potential suspects did the AFP identify at the outset of its investigation?

36. Did the AFP seek access to any person’s telecommunications data for the purposes of confirming – or attempting to ascertain – whether that person disclosed information to Dan Oakes, Sam Clarke or any other ABC journalist? If so: a. How many people’s telecommunications data was accessed by the AFP for that purpose?

b. Did the AFP obtain a journalist information warrant for any of that activity?

The AFP has answered this question in the classified response.

37. Mr Gaughan said at the public hearing on 14 August 2019 that “…we don’t accept just a referral. We ask ‘Before you refer, have you done certain things, with your own due diligence, within the department?’ And that needs to come with it”. a. What had the Department of Defence done before it referred the matter to the AFP?

The Department of Defence undertook their own initial enquiries to determine the classification and ownership of the documents. Any further question should be directed to the Department.

b. Specifically, what due diligence had the Department of Defence done before it referred the matter to the AFP?

The Department of Defence is the best placed to answer this question.

UNCLASSIFIED UNCLASSIFIED

38. The AFP said at the public hearing that it had been in negotiations with the ABC for six months prior to the execution of the search warrant. Please provide the following information.

The AFP would not normally publically comment on the cooperation or otherwise it has received from organisations subject to search warrants, particularly when the investigation and/or criminal proceedings are ongoing. However, noting the significant public interest in an accurate account of events in relation to the execution of the search warrants on the ABC, the AFP provides the following (limited) answers.

a. When did the AFP first contact the ABC in relation to its investigation of the Afghan Files matter prior to executing the search warrant?

13 September 2018.

b. How many times did the AFP contact the ABC in relation to its investigation of the Afghan Files matter prior to executing the search warrant?

The ABC was contacted 14 times by the AFP.

c. What “different means” did the AFP propose to the ABC (with a view to obtaining the information it required)?

The AFP proposed to execute a search warrant on the ABC premises on a cooperative basis to give minimal disruption to the ABC, its premises and staff. The AFP proposed to provide the ABC with the terms of the search warrant (conditions) for the material sought in advance of the warrant execution. This would allow the ABC to search and extract the information from their systems with minimal interference with the privacy of any individuals involved. Once extracted, the AFP would attend, provide them with the search warrant and receive their material (thus executing the search warrant).

d. When did negotiations reach “a dead end”?

Once it became apparent to the AFP the ABC’s cooperation in executing the search warrant was unlikely, the AFP ended the negotiations on 6 February 2019.

e. When did the AFP notify the ABC that it was going to execute a search warrant on the ABC’s Sydney headquarters?

The AFP first advised the ABC on 25 January 2019 of the intent to obtain and execute a search warrant on ABC premises. The ABC was contacted on 4 June 2019 and was advised the AFP would attend on 5 June 2019 to execute the search warrant. A mutually agreeable time, of 11.30 am was agreed between the AFP and ABC.

UNCLASSIFIED UNCLASSIFIED

39. Did the government subsequently declassify all or part of the documents that were leaked to Dan Oakes and Sam Clark?

The AFP is not aware of the relevant documents being declassified.

40. How much has this investigation cost the taxpayer?

This was provided to the Committee on 27 August 2019 in response to a question taken at the public hearing on 14 August 2019.

However, as the investigation is ongoing costs continue to be incurred.

41. Please provide the following information: a. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and the Minister for Home Affairs (or his office) in relation to the Afghan Files matter;

b. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and any other Minister (or Minister’s office) in relation to the Afghan Files matter, along with the identity of the relevant Minister;

On 4 June 2019, Assistant Commissioner Debbie Platz advised the Minister for Home Affairs office that a search warrant had commenced and to expect media activity.

On 5 June 2019, The AFP was provided with a copy of the Minister for Home Affairs statement in relation to the search warrants.

On 3 July 2019, Deputy Commissioner Neil Gaughan attended a meeting with the Attorney-General to discuss the public comments made by the Attorney-General on 19 June 2019.

On 5 June 2019, Deputy Commissioner Neil Gaughan received a text message from the Secretary of Home Affairs, about a briefing the AFP attended not relating to the above matter. He also requested he be kept up to date with non-operational political developments.

UNCLASSIFIED UNCLASSIFIED

d. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and the Secretary of the Attorney-General’s Department (or his office) in relation to the Afghan Files matter; and

There has been no communication between the AFP and the Attorney-General’s Department in relation to this matter.

e. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and the Secretary of the Department of Defence (or his office) in relation to the Afghan Files matter.

On 11 July 2017, the Department of Defence referred this matter to the AFP.

On 20 July 2017, the AFP advised the Secretary of Defence via a letter that the referral had been accepted for investigation.

Note: for the purposes of question 41: - “in relation to” includes any communication that referred to the Afghan Files matter; - “communication” means any written or unwritten communication; and - “every communication between” includes every relevant communication from or to the AFP.

UNCLASSIFIED UNCLASSIFIED

Au pair email investigation

PLEASE NOTE THE FOLLOWING CAVEAT FOR RESPONSES TO QUESTIONS 42-60 This investigation has been finalised by the AFP as a result of the findings of the Senate Standing Committee of Privileges 172th Report. In relation to the unauthorised disclosure of information regarding Mr Dutton’s intervention to grant tourist visas to au pairs (“the au pair emails”)

42. When did the alleged unauthorised disclosure of information take place?

The Senate Standing Committee of Privileges determined parliamentary privilege existed over the relevant documents. As a result there were no further enquiries the AFP could reasonably make and the AFP finalised the investigation.

As the investigation has now been finalised the AFP is able to state it was suspected the alleged unauthorised disclosure took place between 23 – 30 August 2018.

43. When was the matter referred to the AFP?

This matter was referred to the AFP on 30 August 2018.

44. Mr Gaughan said at the public hearing on 14 August 2019 that “…we don’t accept just a referral. We ask ‘Before you refer, have you done certain things, with your own due diligence, within the department?’ And that needs to come with it”. a. What had the Department of Home Affairs done before it referred the matter to the AFP?

The AFP understands the Department of Home Affairs undertook their own initial enquiries to inform the referral. Any further question should be directed to the Department of Home Affairs.

b. Specifically, what due diligence had the Department of Home Affairs done before it referred the matter to the AFP?

As above, the AFP understands the Department of Home Affairs undertook their own initial enquiries to inform the referral. Any further question should be directed to the Department of Home Affairs.

45. What, precisely, did the referral to the AFP say?

The AFP has provided a classified response.

46. Was Lisa Martin or any other journalist mentioned as a “suspect” in the referral?

No journalist was mentioned as a suspect in this referral.

UNCLASSIFIED UNCLASSIFIED

47. Who did the referral ask the AFP to investigate? The alleged leaker, the journalist who received the leaked emails or both of them?

The AFP has provided a classified response.

48. Please provide a copy of the referral.

The AFP has provided a classified response.

49. When did the AFP make the decision to launch a full investigation into the leak?

The AFP made a decision to investigate this matter on 5 September 2018.

50. Did the AFP obtain a journalist information warrant in relation to the leak of the au pair emails? The Committee notes that the AFP has revealed – publically – that a journalist information warrant was not obtained in respect of Annika Smethurst (notwithstanding that the Smethurst investigation is ongoing).

The AFP has answered this question in the classified response.

51. Did the AFP seek access to any person’s telecommunications data for the purposes of confirming – or attempting to ascertain – whether that person disclosed information to a journalist? If so: a. How many people’s telecommunications data was accessed by the AFP for that purpose?

b. Did the AFP obtain a journalist information warrant for any of that activity?

The AFP has answered this question in the classified response.

52. Did the AFP obtain any other covert warrants in relation to Lisa Martin or any other journalist? If so, when were those warrants obtained?

However, the AFP can advise the Committee this investigation did not extend to the activities of any media agencies or journalists.

53. Did the Department of Home Affairs provide the AFP with any evidence that the leaking of the au pair emails had caused any harm to anyone?

UNCLASSIFIED UNCLASSIFIED

The Department of Home Affairs identified a criminal offence had likely been committed.

54. Do you have any evidence that the leaking of the au pair emails caused any harm to anyone?

The Department of Home Affairs identified a criminal offence had likely been committed, and a document had been disclosed without authorisation.

55. Mr Gaughan has said that “public interest is something that we look at in relation to our investigations from the outset”. What factors did the AFP consider at the outset of this investigation in relation to the au pair emails?

A CCPM rating is completed at the time of referral and is also revised when any aspect of the matter changes significantly.

56. Why did the AFP decide it was in the public interest to investigate this unauthorised disclosure?

UNCLASSIFIED UNCLASSIFIED

The Case Categorisation Priority Model (CCPM) assessment recorded against this referral indicates the following assessments were made:

Case Categorisation Priority Model (CCPM)

Based on this CCPM assessment the AFP decided to commence an investigation.

57. In respect of the leak itself, how many potential suspects did the AFP identify at the outset of its investigation?

Please see response at QoN 45.

58. In the AFP’s submission to this inquiry, you say that “[t]he AFP’s standard practice is to notify the Minister for Home Affairs when politically sensitive matters are referred to the AFP unless there is a conflict of interest or potential for perceived conflict of interest”. A day before executing the search warrant in relation to the au pair emails, Mr Gaughan notified Mr Dutton’s office that the AFP would be conducting the raid. a. Why didn’t the AFP follow its standard practice in relation to this matter?

The AFP followed its standard practice by complying with the AFP National Guideline on politically sensitive investigations.

Part 11.3 of the National Guideline governs the AFP’s engagement with the Minister during an investigation. Part 11.3 states:

To ensure the AFP's reporting obligations are maintained without compromise to any operational activity, case officers must:

 consult with the relevant manager when considering the timing and content of ministerial reports  ensure they address any real or perceived conflict of interest when reporting on politically sensitive investigations involving MPs to the MHA  consider briefing MHA parallel to, or after, operational activity has taken place to avoid any perception of irregularity.

In accordance with Part 11.3, the Minister for Home Affairs’ Office was notified of the search warrant activity on the same day the warrant activity was planned (10 October 2018). For unrelated operational reasons, the warrant ultimately was executed the following day.

UNCLASSIFIED UNCLASSIFIED

b. Why did the AFP consider it appropriate to inform Mr Dutton, via his office, that the raid was to take place given Mr Dutton’s obvious conflict of interest?

The AFP did not consider advising the Minister’s Office the execution of search warrants had commenced, gave rise to a conflict of interest. The notification of the execution of the search warrants was appropriate due to the level of public attention the search warrants were expected to receive. The notification did not involve seeking a decision from the Minister, the Minister’s approval, or any other engagement with the Minister in relation to the AFP’s (then) current or proposed operational activities.

59. How much did this investigation cost the taxpayer?

The total cost of the investigation as at 3 September 2019 was $21 900.

60. Please provide the following information: a. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and the Minister for Home Affairs (or his office) in relation to the au pair emails;

On 10 October 2018, AFP National Manager Crime Operations, Assistant Commissioner Debbie Platz, attempted to call the Minister for Home Affairs’ adviser and Chief of Staff. When these phone calls were not answered a text message was sent to the Minister’s Chief of Staff at 11:14am on 10 October 2018:

“Craig. Hi. Our team are executing some search warrants today that may cause some media attention. These relate to the leak of emails relating to the au pair matter. Pls call if you would like further information. Regards Debbie.”

For operational reasons, the AFP decided to conduct the warrant activity the following day (11 October 2018). On 10 October 2018 at 11:52am, AFP Deputy Commissioner Operations, Neil Gaughan, advised the Minister’s Chief of Staff of this update via text message on 10 October 2018 at 11:52am, saying:

“That warrant activity will now be first thing tomorrow morning – Neil”

A response was received:

“Thanks mate – this arvo also fine”

During a telephone conversation at 5.51pm on 10 October 2018, Assistant Commissioner Debbie Platz informed the advisor of impending search warrant activity.

On 11 October 2018, there was email correspondence between AFP employees and the Minister for Home Affairs Office in relation to drafting of a question time brief (QTBs) on the referral from the Department of Home Affairs and the subsequent AFP investigation.

Between the 11 October 2018 and 13 February 2019 there were number of updates to QTBs and other ministerial correspondence.

UNCLASSIFIED UNCLASSIFIED

b. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and any other Minister (or Minister’s office) in relation to the au pair emails, along with the identity of the relevant Minister; and

There has been no communication between the AFP and any other Minister in relation to this matter.

This matter was referred to the AFP by the Department of Home Affairs on 30 August 2018.

Note: for the purposes of question 60: - “in relation to” includes any communication that referred to the au pair emails; - “communication” means any written or unwritten communication; and - “every communication between” includes every relevant communication from or to the AFP.

UNCLASSIFIED UNCLASSIFIED

ASIO leak investigation

In relation to the unauthorised disclosure of information regarding ASIO advice on the “medevac bill” (“the medevac matter”):

61. When did the alleged unauthorised disclosure of information take place?

It is alleged the unauthorised disclosure of information took place between 11 December 2018 and 6 February 2019.

62. When was the matter referred to the AFP?

This matter was referred to the AFP on 7 February 2019.

63. Mr Gaughan said at the public hearing on 14 August 2019 that “…we don’t accept just a referral. We ask ‘Before you refer, have you done certain things, with your own due diligence, within the department?’ And that needs to come with it”. a. What had the Department of Home Affairs done before it referred the matter to the AFP?

The AFP understands the Department of Home Affairs undertook their own initial enquiries to determine the classification and ownership of the documents. Any further question should be directed to the Department.

b. Specifically, what due diligence had the Department of Home Affairs done before it referred the matter to the AFP?

As above, the AFP understands the Department of Home Affairs undertook their own initial enquiries to determine the classification and ownership of the documents. Any further question should be directed to the Department.

64. What, precisely, did the referral to the AFP say?

The AFP has provided a classified response.

65. Was Simon Benson or any other journalist mentioned as a “suspect” in the referral?

No suspects were identified in the referral.

66. Who did the referral ask the AFP to investigate? The alleged leaker, the journalist who received the leaked emails or both of them?

The referral did not specify who the AFP should investigate.

UNCLASSIFIED UNCLASSIFIED

67. Please provide a copy of the referral.

The AFP has provided a classified response.

68. Precisely when did the AFP make a decision not to launch a full investigation into the leak?

The AFP made a decision not to commence an investigation into this matter on 20 March 2019.

69. Did the AFP seek access to any person’s telecommunications data for the purposes of confirming – or attempting to ascertain – whether that person disclosed information to Simon Benson or any other journalist? If so: a. How many people’s telecommunications data was accessed by the AFP for that purpose?

The AFP did not commence an investigation into this matter.

b. Did the AFP obtain a journalist information warrant for any of that activity?

The AFP did not commence an investigation into this matter.

70. From the date the matter was referred to the AFP to the date on which the decision not to launch a full investigation was made: a. Precisely what steps did the AFP take in relation to this matter? b. Did the AFP interview – or otherwise speak to – any suspects or potential suspects about the medevac matter? If so, please provide details. c. Did the AFP interview – or otherwise speak to – anyone in the Minister for Home Affairs’ office about the medevac matter? If so, please provide details. d. Did the AFP – or otherwise speak to – interview anyone at ASIO about the medevac matter? If so, please provide details. e. Did the AFP interview – or otherwise speak to – the Secretary of the Department of Home Affairs about the medevac matter? If so, please provide details. f. Did the AFP interview – or otherwise speak to – Simon Benson about the medevac matter? If so, please provide details. a) The matter was evaluated but was not accepted for investigation. b) The AFP did not commence an investigation into this matter. c) There were no communications between the AFP and the Minister or the Minister’s office in relation to this matter. d) The AFP did not commence an investigation into this matter. e) The AFP did not speak to the Secretary of the Department of Home Affairs directly. f) The AFP did not commence an investigation into this matter. As the matter did not commence to an investigation the AFP did not speak to Mr Benson.

UNCLASSIFIED UNCLASSIFIED

71. Did the AFP ascertain how many, or approximately how many, people had access to the classified advice prior to it being leaked to a journalist? If so, how many people?

During the initial assessment of the referral, the AFP ascertained over 200 people accessed or had access to the information.

72. Did the AFP obtain a journalist information warrant in relation to the medevac matter? Did the AFP ever discuss this? The Committee notes that the AFP has revealed – publically – that a journalist information warrant was not obtained in respect of Annika Smethurst (notwithstanding that the Smethurst investigation is ongoing).

The AFP did not commence an investigation into this matter.

73. Did the AFP try to collect any evidence from the journalist who received the leaked advice?

The AFP did not commence an investigation into this matter.

74. Mr Gaughan has said that “public interest is something that we look at in relation to our investigations from the outset”. What factors did the AFP consider when it was deliberating about whether to launch a full investigation in relation to the medevac?

UNCLASSIFIED UNCLASSIFIED

 Whether an alternative to criminal investigation is appropriate

A CCPM rating is completed at the time of referral and is also revised when any aspect of the matter changes significantly.

75. In respect of the leak itself, how many potential suspects did the AFP identify at the outset of its investigation?

The AFP did not commence an investigation into this matter.

76. How is it possible to conclude that there are “limited prospects of identifying a suspect” before launching a full investigation?

Prior to commencing an investigation the AFP established processes require the AFP to consider the likelihood of a successful investigation and the required resourcing to undertake such an investigation.

In this matter there was large number of people who had accessed, or had access to, the relevant material which severely reduced the possibility of narrowing the number of potential suspects down to a suspect. As such, the likelihood the AFP could undertake a successful investigation in these circumstances was extremely low.

77. Are there other examples of the AFP declining to launch a full investigation into the unauthorised disclosure of classified national security information on the basis that there were “limited prospects of identifying a suspect”? Please provide details.

The AFP has provided a classified response.

78. Given the apparent double-standard (as between the handling of the Smethurst matter and the medevac matter, for example), why did the AFP decide that it was inappropriate to launch a full investigation into the journalist who received the leaked advice given that, by receiving classified national security information and publishing it, he technically committed one or more offences under the Crimes Act 1914 (as was then in force)?

The essential elements of the offence require the AFP to establish the circumstances of the initial disclosure and to establish that it was unauthorised. In the ASIO Medevac matter, it was determined that that investigation had limited prospects of success due to the large number of people that had accessed or had access to classified documents.

79. Please provide the following information: a. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and the Minister for Home Affairs (or his office) in relation to the medevac matter;

UNCLASSIFIED UNCLASSIFIED

There were no communications between the AFP and the Minister in relation to this matter.

b. the date and content (or, if classified, summary of the content) of every communication between the AFP or any AFP officer and any other Minister (or Minister’s office) in relation to the medevac matter, along with the identity of the relevant Minister; and

There were no communications between the AFP and any other Minister in relation to this matter.

There was no communications between the AFP and the Secretary of the Department of Home Affairs or his office in relation to this matter.

The AFP investigators made contact with the Department of Home Affairs Integrity Unit during the investigation.

Note: for the purposes of question 79: - “in relation to” includes any communication that referred to the medevac matter; - “communication” means any written or unwritten communication; and - “every communication between” includes every relevant communication from or to the AFP.

UNCLASSIFIED UNCLASSIFIED

Guidelines

80. Please provide the Committee with a copy of the AFP’s guidelines for politically sensitive investigations. The AFP National Guideline on Politically Sensitive Investigations is publically available on the AFP Information Publication Scheme and was further provided to the Committee on 27 August 2019 in response to a question on notice taken at the public hearing on 14 August 2019.

UNCLASSIFIED UNCLASSIFIED

Ministerial Directions

81. The AFP’s website states that Ministerial Directions remain valid until revoked or otherwise superseded. On the AFP’s website, only the direction from 9 August 2019 is listed. Is this the first and only ministerial direction that has ever been issued under section 37(2) of the Australian Federal Police Act 1979?

Both the Ministerial Direction issued by the former Minister for Justice, the Hon Michael Keenan MP, on 12 May 2014 and the Ministerial Direction issued by the Minister for Home Affairs, the Hon Peter Dutton MP, are currently in force and publically available on the AFP’s website. The 2014 Ministerial Direction superseded an earlier Direction issued in 2010.

82. How many Ministerial Directions have been issued since September 2013?

Two Ministerial Directions have been issued since September 2013.

83. How many Ministerial Directions are currently in force?

Two Ministerial Directions are currently in force in relation to the AFP.

84. If more than one, why does the AFP website only list the Ministerial Direction from 9 August 2019 and no other?

The AFP’s website currently lists both Ministerial Directions that are in force. When the new Ministerial Direction was posted to the website on 9 August 2019 the old Direction was inadvertently removed from the AFP public website. This was an administrative error that was resolved by 12 August 2019.

85. Please provide this Committee with a copy of every Ministerial Direction that is currently in force.

The two Ministerial Directions currently in force are publically available on the AFP’s website.

Copies of the Ministerial Directions are at Attachment A.

86. Under section 37(2) of the Australian Federal Police Act 1979, the Minister may – after obtaining the advice of the Commissioner and of the Secretary – give written directions to the Commissioner with respect to the general policy to be pursued in relation to the performance of the functions of the Australian Federal Police. Please provide the Committee with a copy of the advice that the Commissioner provided to the Minister prior to the issuance of the Ministerial Direction issued on 9 August 2019.

UNCLASSIFIED UNCLASSIFIED

The joint advice to the Minister for Home Affairs resulted in the public release of the Ministerial Direction. As the joint advice formed part of a deliberative process involved in the functions of the Minister of Home Affairs, the AFP is not in a position to provide it to the inquiry.

87. The Minister says in the Direction that he expects the AFP “to take into account the importance of a free and open press in Australia’s democratic society and to consider broader public interest implications before undertaking investigative action involving a professional journalist or news media organisation in relation to an unauthorised disclosure of material made or obtained by a current or former Commonwealth officer”. On 6 June, Mr Gaughan told journalists that the AFP already considers the public interest before commencing an investigation. How does this direction represent a departure from what the AFP was already doing?

The Ministerial Direction issued on 8 August 2019 formalises the public interest considerations that AFP takes into account when assessing whether to commence an investigation and clearly specifies that the importance of a free and open press should be taken into account as well as broader public interest implications. The Ministerial Direction also directs the AFP to exhaust alternative investigative actions prior to considering whether investigative action involving a professional journalist or news media organisation is necessary. Finally, the Ministerial Direction directs the AFP to strengthen its guidance and processes around unauthorised disclosure referrals.

UNCLASSIFIED UNCLASSIFIED

Unauthorised disclosure investigations

88. In his press conference on 6 June 2019, Mr Gaughan said that the AFP “get numerous referrals to us and to be honest we get too many”. Please provide a year by year breakdown (from 1 July 2004 to the present) of the following information: a. the number of referrals the AFP has received for potential unauthorised disclosure offences;

Due to ICT limitations, the AFP can only provide statistics in relation to unauthorised disclosure offences from January 2013- June 2019.

From the period of January 2013 to June 2019 the AFP has received in order of 100 referrals relating to alleged Commonwealth unauthorised disclosure offences.

b. where those referrals originated (e.g. “The Department of Home Affairs made #x referrals for potential unauthorised disclosure offences between 1 July 2017 and 30 June 2018”);

The AFP has provided a classified response.

c. of the referrals that relate to the unauthorised disclosure of “secret” or “top secret” information, how many have resulted in the AFP launching a full investigation;

From the period 1 January 2013 to 30 June 2019, the AFP received 19 referrals relating to the unauthorised disclosure of SECRET or TOP SECRET information. 14 of these were accepted for investigation.

d. of the referrals that relate to the unauthorised disclosure of information that is neither “secret” nor “top secret”, how many have resulted in the AFP launching a full investigation; and

From the period 1 January 2013 to 30 June 2019, the AFP received 80 referrals relating to the unauthorised disclosure of information classified “protected” or below. 53 of these were accepted for investigation.

e. approximately how much have investigations into unauthorised disclosure investigations cost the AFP / taxpayer.

From the period 1 January 2013 to 30 June 2019, the AFP has spent approximately $3,691,000 on unauthorised disclosure investigations.

UNCLASSIFIED UNCLASSIFIED

89. Has the AFP ever questioned any member of the Parliamentary Joint Committee on Intelligence and Security as part of an unauthorised disclosure investigation? If so, when and why? Please provide details.

Question on hold.

90. Has the AFP ever obtained a warrant to search, monitor, intercept the communications of or access a computer used by a member of the Parliamentary Joint Committee on Intelligence and Security as part of an unauthorised disclosure investigation? If so, when and why? Please provide details.

Question on hold.

91. Has the AFP ever questioned any staff of the Parliamentary Joint Committee on Intelligence and Security as part of an unauthorised disclosure investigation? If so, when and why? Please provide details.

Question on hold.

92. Has the AFP ever obtained a warrant to search, monitor, intercept the communications of or access a computer used by any staff of the Parliamentary Joint Committee on Intelligence and Security as part of an unauthorised disclosure investigation? If so, when and why? Please provide details.

Question on hold.

UNCLASSIFIED UNCLASSIFIED

Information about warrants in relation to journalists

For the purposes of this information request, the word “journalist” has the same meaning as it has in the Evidence Act 1995. That is, “any person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium”.

If any part of this request is unclear or requires clarification please contact the Secretariat as soon possible so that the matter can be clarified.

In circumstances where it is unclear whether information about a particular warrant should be included as part of the AFP’s response to this request for information (e.g. it is arguable, but unclear, that a particular warrant was “in relation to a journalist”), the AFP should include the information with any necessary qualifications or caveats.

In response to this request for information, the AFP should:

 provide as much information as possible; and

 explain, in detail, what steps it took in order to obtain the requested information (what searches were conducted, who the AFP consulted etc).

Please provide as much information as possible in response to this request. If any of the requested information is impossible to obtain, the AFP should provide the Committee with a detailed explanation setting out:

 what steps the AFP has taken to obtain the relevant information; and

 why the AFP was unable to obtain the relevant information. Search warrants under the Crimes Act 1914 in relation to journalists

For the purposes of these questions, a warrant was “in relation to a journalist” if the warrant authorised a law enforcement agency to:

 search a premises owned or occupied by a journalist or media organisation;  search a journalist’s place of work; or  search or frisk a journalist.

Please provide a year by year breakdown (from 1 July 2004 to the present) of the following information:

PLEASE NOTE THE FOLLOWING CAVEAT FOR RESPONSES TO QUESTIONS 93-124

The AFP has provided information in relation to the Smethurst and ABC matters in the answers to questions 1 - 41 and those investigations are not included in the answers to questions 93 – 124.

As indicated previously both those investigations are ongoing and are subject to ongoing civil litigation and with respect to the ABC matter, criminal proceedings. It would not be appropriate to comment further on these two active investigations.

UNCLASSIFIED UNCLASSIFIED

93. how many search warrants the AFP applied for in relation to journalists;

The AFP retains records in the terms required by law, which do not include a person’s occupation. Accordingly, the AFP does not keep specific records for the occupation of the person in relation to search warrants. Therefore, the AFP cannot provide a specific figure in relation to how many search warrants have been obtained ‘in relation to a journalist’ across all crime types.

94. if the figure is different, how many search warrants in relation to journalists were in fact issued;

Please see response at QoN 93.

95. how many search warrants the AFP applied for in relation to journalists where a journalist was the target – or one target – of the relevant investigation (as distinct from a person who was suspected of holding evidence of an offence committed by someone else);

Please see response at QoN 93.

96. how many of the search warrants in relation to journalists: o related to investigations of unauthorised disclosures by public servants; and o of those, how many related to unauthorised disclosures of “secret” or “top secret” information by public servants;

Please see response at QoN 93.

97. what offence(s) the search warrants related to (e.g. a suspected breach of section 70 of the Crimes Act 1914).

Please see response at QoN 93.

Surveillance device warrants under the Surveillance Devices Act 2004 in relation to journalists

For the purposes of these questions, a warrant or authorisation was “in relation to a journalist” if it authorised a law enforcement agency to monitor activities, conversations or movements:

 of a journalist; or  of a media organisation or its employees.

UNCLASSIFIED UNCLASSIFIED

Please provide a year by year breakdown (from 1 July 2004 to the present) of the following information:

98. how many surveillance device warrants the AFP applied for in relation to journalists;

The AFP has reviewed its records of unauthorised disclosure investigations since 2013. That is, those investigations referred to in the response to QoN 88.

In relation to those unauthorised disclosure investigations since 2013 the AFP has not located any record of having applied for, or obtaining, any surveillance device warrants in relation to a journalist.

The AFP retains records in the terms required by law, which do not include a person’s occupation. Accordingly, the AFP does not keep specific records for occupation type in relation to surveillance device warrants. Therefore, the AFP cannot provide a specific figure in relation to how many surveillance device warrants have been obtained ‘in relation to a journalist’ across all crime types.

99. if the figure is different, how many surveillance device warrants in relation to journalists were in fact issued;

Please see response at QoN 98.

100. how many surveillance device warrants the AFP applied for in relation to journalists where a journalist was the target – or one target – of the relevant investigation (as distinct from a person who was suspected of holding evidence of an offence committed by someone else);

Please see response at QoN 98.

101. how many of the surveillance device warrants in relation to journalists: o related to investigations of unauthorised disclosures by public servants; and o of those, how many related to unauthorised disclosures of “secret” or “top secret” information by public servants;

Please see response at QoN 98.

102. what offence(s) the surveillance device warrants related to (e.g. a suspected breach of section 70 of the Crimes Act 1914);

Please see response at QoN 98.

103. how many of the surveillance device warrants in relation to journalists related to an international assistance application / authorisation;

Please see response at QoN 98.

104. how many emergency authorisations (as defined in the Surveillance Devices Act) for the use of a surveillance device were authorised in relation to a journalist; and

Please see response at QoN 98.

105. how many surveillance devices were used in relation to a journalist without a warrant pursuant to Part 4 of the Surveillance Devices Act 2004.

UNCLASSIFIED UNCLASSIFIED

Please see response at QoN 98. Computer access warrants under the Surveillance Devices Act 2004 in relation to journalists

For the purposes of these questions a warrant or authorisation was “in relation to a journalist” if it authorised a law enforcement agency to take any actions:

 in relation to a computer owned or operated by a journalist or media organisation; or  in relation to a computer for the purpose of obtaining access to data or information produced, owned or held by a journalist or media organisation.

Since computer access warrants for law enforcement agencies were introduced in 2018:

106. how many computer access warrants the AFP applied for in relation to journalists;

The AFP has provided a classified response.

107. if the figure is different, how many computer access warrants in relation to journalists were in fact issued;

Please see response at QoN 106.

108. how many computer access warrants the AFP applied for in relation to journalists where a journalist was the target – or one target – of the relevant investigation (as distinct from a person who was suspected of holding evidence of an offence committed by someone else);

Please see response at QoN 106.

109. how many of the computer access warrants in relation to journalists: o related to investigations of unauthorised disclosures by public servants; and o of those, how many related to unauthorised disclosures of “secret” or “top secret” information by public servants;

Please see response at QoN 106.

110. what offence(s) the computer access warrants related to (e.g. a suspected breach of section 70 of the Crimes Act 1914);

Please see response at QoN 106.

111. how many of the computer access warrants in relation to journalists related to an international assistance application / authorisation; and

UNCLASSIFIED UNCLASSIFIED

Please see response at QoN 106.

112. how many emergency authorisations (as defined in the Surveillance Devices Act) for access to data held in a computer were authorised in relation to a journalist.

Please see response at QoN 106.

Telecommunications service warrants under the Telecommunications (Interception) Act 1979in relation to journalists

For the purposes of these questions, a warrant was “in relation to a journalist” if it authorised a law enforcement agency to intercept communications made to or from a service used – or reasonably likely to be used – by a journalist in circumstances where:

 the relevant agency was investigating an offence in which a journalist or media organisation was allegedly involved (i.e. the journalist or media organisation was one of the targets of the investigation); or  the relevant agency was investigation an offence in which another person was allegedly involved (i.e. the target of the investigation) with whom a journalist or media organisation was likely to communicate using the relevant service (i.e. the warrant was a B-party warrant).

Please provide a year by year breakdown (from 1 July 2004 to the present) of the following information:

113. how many telecommunications service warrants the AFP applied for in relation to journalists;

The AFP has reviewed its records of unauthorised disclosure investigations since 2013. That is, those investigations referred to in the response to QoN 88.

In relation to those unauthorised disclosure investigations since 2013 the AFP has not located any record of having applied for, or obtaining any telecommunications interception service warrants in relation to a journalist.

The AFP retains records in the terms required by law, which do not include a person’s occupation. Accordingly, the AFP does not keep specific records for occupation type in relation to surveillance device warrants. Therefore, the AFP cannot provide a specific figure in relation to how many telecommunications interception service warrants have been obtained ‘in relation to a journalist’ across all crime types.

114. if the figure is different, how many telecommunication service warrants in relation to journalists were in fact issued;

Please see response at QoN 113.

UNCLASSIFIED UNCLASSIFIED

115. how many telecommunications service warrants the AFP applied for in relation to journalists where a journalist was the target – or one target – of the relevant investigation (as distinct from a person who was suspected of holding evidence of an offence committed by someone else);

Please see response at QoN 113.

116. how many of the telecommunications service warrants in relation to journalists: o related to investigations of unauthorised disclosures by public servants; and o of those, how many related to unauthorised disclosures of “secret” or “top secret” information by public servants; and

Please see response at QoN 113.

117. what offence(s) the telecommunications service warrants related to;

Please see response at QoN 113.

118. how many of the telecommunications service warrants in relation to journalists related to an international assistance application / authorisation.

Please see response at QoN 113.

Named person warrants under the Telecommunications (Interception) Act 1979 in relation to journalists

Please provide a year by year breakdown (from 1 July 2004 to the present) of the following information:

119. how many named person warrants the AFP applied for in relation to journalists;

The AFP has reviewed its records of unauthorised disclosure investigations since 2013. That is, those investigations referred to in the response to QoN 88.

UNCLASSIFIED UNCLASSIFIED

The AFP retains records in the terms required by law, which do not include a person’s occupation. Accordingly, the AFP does not keep specific records for occupation type in relation to surveillance device warrants. Therefore, the AFP cannot provide a specific figure in relation to how many telecommunications interception named person warrants have been obtained ‘in relation to a journalist’ across all crime types.

120. if the figure is different, how many named person warrants in relation to journalists were in fact issued;

Please see response at QoN 119.

121. how many named person warrants the AFP applied for in relation to journalists where a journalist was the target – or one target – of the relevant investigation (as distinct from a person who was suspected of holding evidence of an offence committed by someone else);

Please see response at QoN 119.

122. how many of the named person warrants in relation to journalists: o related to investigations of unauthorised disclosures by public servants; and o of those, how many related to unauthorised disclosures of “secret” or “top secret” information by public servants;

Please see response at QoN 119.

123. what offence(s) the named person warrants related to; and

Please see response at QoN 119.

124. how many of the named person warrants in relation to journalists related to an international assistance application / authorisation;

Please see response at QoN 119.

Access to telecommunications data under the Telecommunications (Interception) Act 1979 in relation to journalists

125. Please provide a year by year breakdown (from 1 July 2017 to the present) of the following information:

UNCLASSIFIED UNCLASSIFIED

o how many times the AFP has applied for a journalist information warrant;

The AFP has provided a classified response.

o how many journalist information warrants were in fact issued;

The AFP has provided a classified response.

o how many of those warrants were invalid (if any);

The AFP has provided a classified response.

o if relevant, why those warrants were invalid; and

The AFP has provided a classified response.

o in respect of each invalid warrant (if any), how many times the AFP accessed telecommunications data.

The AFP has provided a classified response.

126. Since the passage of the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015: o How many times has the AFP requested telecommunications data from a provider other than in accordance with the regime introduced by that Act? For example, we note that Home Affairs has told the Committee that section 280 of the Telecommunications Act is being used regularly to request telecommunications data.

The Telecommunications (Interception and Access) Act is a comprehensive regime that permits law enforcement agencies to intercept and access telecommunications data in prescribed circumstances. The Telecommunications Act 1997 contains provisions restricting access to telecommunications data (see provisions 276, 277, and 278). Section 280 of the Telecommunications Act provides a number of exceptions to those restrictions, which include situations where a journalist information warrant is obtained under Chapter 4 of the Telecommunications (Interception and Access) Act.

UNCLASSIFIED UNCLASSIFIED

o How many times has the AFP requested telecommunications data in relation to a journalist other than in accordance with the regime introduced by that Act (e.g. using a combination of section 280 and section 313 of the Telecommunications Act)?

The AFP does not use any other legislative avenue other than that prescribed by Chapter 4 of the Telecommunications (Interception and Access) Act 1979 to request telecommunications data from providers. The PJCIS will be familiar with one instance where the AFP self-reported that a journalist information warrant was not sought in a situation where a warrant was required. This incident was subsequently investigated and reported on by the Ombudsman.

o Regardless of whether the AFP has used such a mechanism to access the telecommunications data of a journalist, is it the AFP’s understanding that it is theoretically possible for the AFP to use a combination of section 280 and section 313 of the Telecommunications Act to access the telecommunications data of a journalist without obtaining a journalist information warrant?

The AFP is not aware of any theoretical way it would be possible to rely on the Telecommunications Act 1997 to circumvent the requirements of s. 180H of the Telecommunications (Interception and Access) Act 1979.

UNCLASSIFIED UNCLASSIFIED

Attachment A

UNCLASSIFIED UNCLASSIFIED

UNCLASSIFIED