ABC Radio Melbourne Raf Epstein 7 June 2019






RAF EPSTEIN, HOST: Thanks for coming.


EPSTEIN: Can we just go through a few of the things the AFP said, and I would just be interested to know if you accept them. First thing, no political interference in the timing or the idea of these raids. Do you accept that?

DREYFUS: Perhaps I could say at a general level, I’m not here to criticise the AFP. They’re going about their job as best they can. I’m looking for the government to make explanations here. I’m looking to hear from the Prime Minister, Mr Morrison. I’m looking to hear from Mr Dutton, who is the responsible minister for the Australian Federal Police, as to how this government is going about the difficult balancing task of protecting freedom of the press and protecting national security. It’s for them to answer.

EPSTEIN: Can I just ask for your view though. The AFP say politicians – and I’ll get to freedom of the press – politicians had no role in choosing to execute a search warrant, or the timing of that. Do you accept that?

DREYFUS: If Deputy Commissioner Neil Gaughan, a fine and long serving officer of the Australian Federal Police, says it, then of course I accept it.

EPSTEIN: Is it intimidation? He says it’s not intimidation.

DREYFUS: Well he didn’t say that, he said it wasn’t intended to be, and that’s the question here. You’ve got a raid – and if it smells like a raid, looks like a raid, I’m going to call it a raid. You’ve got a raid conducted on a senior journalist’s home. You’ve got another raid the next day, conducted on journalists’ offices, or actually the headquarters of the ABC. And of course it’s going to have a chilling effect. Of course, it’s going to have an intimidating effect on journalism. But the balancing here has to be done by the government. That’s what I’m saying. It’s for the government to explain.

EPSTEIN: I know you want to talk about the politicians and not the police…

DREYFUS: No I want to talk about the government. It’s not that they’re politicians, it’s that they are the responsible ministers. Their job is to engage in the balancing here. They are the ones…

EPSTEIN: Well they say they believe in the freedom of the press, the Prime Minister said that.

DREYFUS: And they are such hollow words from Mr Morrison.

EPSTEIN: Why are they hollow?

DREYFUS: Mr Morrison said that he was not troubled by what’s gone on here. Now that’s extraordinary. You can’t say you’re not troubled. Millions of Australians watching this would be very troubled, Raf, by what’s occurred here. And you can’t say you defend freedom of the press when you’ve not lifted a finger and not explained anything to the people of Australia about what has happened here. We’ve got Mr Morrison hiding behind Mr Dutton, who is in a cowardly way hiding behind the AFP. He sent Deputy Commissioner Gaughan out today to give a lengthy press conference…

EPSTEIN: Should you be personalising it by calling Mr Dutton cowardly?

DREYFUS: Oh absolutely.


DREYFUS: It’s his job as the Home Affairs Minister to explain what’s happened. It’s his job to explain, and it’s the Prime Minister’s job as well, to explain how this government is balancing the competing values here. And for them to have sent a referral off to the Australian Federal Police, knowing that it might result in what has actually occurred which is a raid on journalists. To not seek any further information…one of these is two years old. One of them is a year old.

EPSTEIN: But you’re saying, you’re implying there, that the ministers direct the heads of the public service departments to ask for a police inquiry.

DREYFUS: No. They have set in train a referral here. They’ve decided that this particular matter, in one case, the revelation that senior officials and ministers were considering a change to the law which might have permitted the Australian Signals Directorate to spy on Australian citizens, a pretty major thing which would have had to have become public if they’d gone forward with it. They didn’t because the Prime Minister Mr Turnbull kyboshed it. But that would have become public and I don’t accept that there is some national security reason there for not discussing it.

EPSTEIN: But how is the government – and I’m not saying the stories aren’t important, I think the stories are important. I think most of the audience thinks the stories are important.

DREYFUS: And there’s a deep public interest in discussion of them.

EPSTEIN: I agree. But why is the government responsible? The AFP you’re saying, this is purely about the publication of classified secrets. It’s very clear that person who formally signs the letter to get the police involved are public servants, they’re the heads of departments. The government’s got nothing to do with this?

DREYFUS: On the contrary, the government is responsible for what the heads of departments do. The Prime Minister and the Minister for Home Affairs are responsible for the conduct of those departments. And it’s for them…

EPSTEIN: But they don’t organise the raids.

DREYFUS: No of course they don’t organise the raids and no-one is suggesting that. They’ve set the process in train, and protecting freedom of the press actually outweighs some further investigation. You could use as an example the apparently deliberate leaking of ASIO material that was used by the government to advantage in the recent debate about the medevac bill. That leak has been referred by the Head of the Home Affairs Department to the police for investigation but then what the government did was declassify that material so all of a sudden because it suited them to have it leak, it’s no longer secret. So there’s a very different approach being taken to supposed national security information to the approach that was taken here. You’ve got to have a government that stands by its words. Otherwise they’re hollow. You can’t say you care about freedom of information if you don’t back it up – sorry freedom of the press if you don’t back it up.

EPSTEIN: Mark Dreyfus is with us, the Shadow Attorney-General. I will get some of your calls. I want to know, Mark Dreyfus, if you think any journalists are going to be charged. There’s an exchange I want to play here,  I don’t actually know the names of the reporter, speaking to the Acting Head of the AFP Neil Gaughan. But listen to the questions and answers, this is about whether or not journalists might be charged.
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EPSTEIN: Neil Gaughan there I think answering questions from Chris Uhlmann at Channel Nine. Mark Dreyfus do you think journalists are going to be charged?

DREYFUS: I’m not conducting this investigation and…

EPSTEIN: Well what does that sound like to you?

DREYFUS: It says to me there’s a possibility, and it’s strikingly different from what the Attorney-General sought to say on Fran Kelly’s program yesterday morning, about 36 hours ago, in the middle of the afternoon today we hear from Deputy Commissioner Gaughan that it’s a possibility. I’ve also noticed that the Australian Federal Police’s first media statement said that they were only investigating breaches in respect of Section 70, Division 6 of the Crimes Act 1914. They put out a correcting statement today saying they are investigating – sorry to be technical – under Division 6 and 7…

EPSTEIN: That means we were looking at leakers now we might be looking at publishers.

DREYFUS: At recipients and publishers, which of course includes journalists. And that’s a concern that there seems to be some doubt about that. You have to come back to the value that we’re seeking to preserve here. There is freedom of the press, it plays an incredibly important role in our democracy. It’s not just in relation to revelation of national security matters. We need a free press to tell us about failing hospitals and failing schools, and failing fire services, and whatever else government is concerned with.

EPSTEIN: Can I just ask about the search warrant. There was one question on the search warrant to Neil Gaughan today. It allows the AFP to alter, or delete data while they’re trying to secure evidence for proving a criminal conviction. Neil Gaughan said, well, whenever you look at a digital file you alter it merely by opening it up. Was that a sufficient answer about their power to delete data?

DREYFUS: I was a bit puzzled to see the word ‘delete’. My children would laugh at me if they could hear me struggle to explain digital technology. But it’s true that you alter the zeroes and ones. You alter the metadata every time you look at a document, every time you call it up. But the idea that in a search warrant you would authorise deletion, seems to me to be going too far.

EPSTEIN: Are you going to be asking questions in Parliament about that particular thing?

DREYFUS: Well it’s probably something I’ll raise with the Australian Federal Police at some stage because it’s a pretty technical matter. I don’t understand why the search warrant shouldn’t have simply referred to the possibility that in the accessing of a document, there might be some alteration that occurs in the zeroes and ones in the metadata. Deletion seems to me to be a step too far, Raf.

EPSTEIN: Mark Dreyfus thank you very much for your time.

DREYFUS: Thank you very much.