ABC journalist Dan Oakes will not be charged over Afghan Files reporting, AFP says

Paul Karp
·4-min read
<span>Photograph: David Gray/AAP</span>
Photograph: David Gray/AAP

Commonwealth prosecutors have declined to charge the ABC journalist Dan Oakes over his reporting of alleged war crimes by Australian special forces in Afghanistan.

In a statement on Thursday, the Australian federal police said although commonwealth prosecutors advised there were “reasonable prospects” of convictions in relation to two charges, they had decided not to prosecute due to “public interest” considerations.

The decision follows similar moves by the AFP to rule out charges against News Corp’s Annika Smethurst in May and against Oakes’ producer Sam Clark in July, as police sought to limit the fallout from two high-profile cases that caused a broad media campaign for press freedom.

Oakes told ABC TV on Thursday the decision was a “considerable relief” but noted that whistleblower David McBride is still being prosecuted for allegedly leaking classified information that formed the basis of the reports.

Related: The case against Dan Oakes exposes how dangerously fragile press freedom is in Australia | Peter Greste

In a statement the ABC’s managing director, David Anderson, said although it welcomed the decision, the fact journalists could have been prosecuted proves “legislation needs to be changed to provide proper protection for journalists and their sources” acting in the public interest.

In June 2019, the AFP raided Smethurst’s home seeking information about the alleged publication of classified material relating to the Australian Signals Directorate’s spying powers, shortly followed by a raid on the ABC headquarters over reporting of alleged war crimes in Afghanistan.

Both News Corp and the ABC challenged the validity of the police warrants. News Corp won in the high court but the federal court ruled the ABC warrant was valid, heightening the threat of prosecution against Oakes and Clark.

On Thursday, the AFP said it had “finalised an investigation into allegations that ABC journalist Daniel Oakes obtained classified information”.

After the AFP submitted a brief of evidence, the commonwealth director of public prosecutions advised there were “reasonable prospects of conviction in relation to two” of three potential charges.

Oakes claimed the potential charges “were not necessarily related to national security, they were related to possession of stolen goods and disclosing defence information”.

The AFP said: “In determining whether the matter should be prosecuted, the CDPP considered a range of public interest factors, including the role of public interest journalism in Australia’s democracy.”

“The CDPP determined the public interest does not require a prosecution in the particular circumstances of this case,” the federal police said. “As a result of this determination, the AFP has finalised its investigation into Mr Oakes.”

Anderson said the whole episode “has been both disappointing and disturbing” and the matter “should never have gone this far”.

The managing director said the CDPP’s conclusion about the public interest is what the ABC had “argued all along” – that journalists “should not be prosecuted for doing their jobs and legislation needs to be changed to provide proper protection for journalists and their sources when they are acting in the public interest”.

The ABC news director, Gavin Morris, said the public interest test should be applied “before raids are held on journalists’ homes and media headquarters” to avoid the “full farce” of the three-year Afghan Files investigation.

Morris was downbeat about the prospect of legal changes, telling ABC TV that despite inquiries he had not seen “any evidence that anything is changing”.

In August, a parliamentary inquiry concluded journalists should not be immune from secrecy offences but it proposed new defences for public interest journalism.

The Media, Entertainment and Arts Alliance federal president, Marcus Strom, said that Australia’s laws “punish journalists and whistleblowers for upholding the public’s right to know and are being used in response to news stories that embarrass governments”.

“They are being used to pursue and punish whistleblowers and to threaten and muzzle the media,” Strom said. “That undermines our democracy because these laws have a chilling effect on journalism by using jail terms to punish legitimate scrutiny of government.”

Anderson said the Afghan Files were “factual and important reporting which exposed allegations about Australian soldiers committing war crimes in Afghanistan”.

“Its accuracy has never been challenged and it remains online for audiences to read.”