|The Sunday Times Raid: Story Two
A couple of weeks ago I marked a pile of essays addressing the question “What role does the media play in liberal democracies?” The students enthusiastically recapped the history of the premise that the media is the fourth estate, the defender of the separation of the powers and democracy’s watchdog.
Last week 16 police officers raided The Sunday Times’ newsroom. They weren’t investigating the paper, it had done nothing wrong. They were looking for clues about the identity of someone who spoke to a journalist about “secret government business”, business so secret it qualified for protection under the section of the criminal code that deals with “Disclosing official secrets”.
The broad-daylight raid, prompted howls of outrage that have left the various government departments involved quaking in their boots.
The response was intense because, from the pictures we saw, it looked for all the world like something that we hold precious - the freedom of our press - was under threat.
The outrage mainly centred on the notion that it would have been very wrong IF a parliamentarian had ORDERED the raid. This would have been a major breach of the separation of powers, a breach that if left unchecked could become the norm and the upshot is that our peaceful democracy could become a police state - a state in which the police follows the whims of the Governing party, rather than the dictates of laws that have been approved through the laborious process of three readings in each house of parliament.
The media asked if this had happened not because the media hates the Carpenter government, but simply because it was the media’s job. That IS the role the media plays in a liberal democracy. My students could all tell you that.
The Government’s response was a resounding denial. Parliamentarians and public servants declared in unison that the raid happened simply because a cascade of public servants did what they had to do in the course of their duty, as detailed by Acts of Parliament, which they cited.
The media pack didn’t at this point wag tails and go home. It continued to exhibit watchdog-like tendencies and it asked some more questions.
The rationale failed to quiet the pack for two reasons.
One: It’s still not OK that it happened, even if bureaucrats operated without parliamentary pressure. Whistleblowers and journalists are key players in the democratic process. They enable sensible voting and so any curbing of their activity is wrong, democratically speaking.
Two: It simply didn’t explain why this extraordinary event had happened. There is a glaring logical hole in an argument that claims that an extraordinary event can arise from a completely ordinary process without some catalyst for change intervening at some point. It’s like the virgin birth.
Having had our shouting match we clearly now need to sit down for a chat, to sort it all out. We (the media and government) need to talk it through. Two things work against this though.
One is that the news-value progressively diminishes as picking through legislative compliance issues is not so appealing to thrill-seeking media consumers. This erodes the time and space that audience-dependent media organisations can devote to this kind of follow up, but it’s important not to confuse media exhaustion with media satisfaction.
The second is that it involves communication with government officers who tend, for good reasons, to clam up when asked difficult questions.
What good reasons? Well mainly that this whole story is about an investigation into a criminal act of unauthorised disclosure by a well meaning person inside government. The context alone IS enough to make public servants nervous.
Despite these difficulties I spent the day picking through the entrails of the story, trying to find a few more facts about who did what and why.
First up, I can clarify what the Corruption and Crime Commission (CCC) had to do with it. Answer: Not much.
The CCC has been mentioned in various versions of the story because the Department of Premier and Cabinet (DPC) cited section 28 of the CCC Act 2003 as its rationale for dobbing about the misconduct.
This section is titled: “Certain officers obliged to notify misconduct” and its subsections clearly relate to the Director General (DG) of the DPC. The point of citing this bit of legislation is that it shows that the DG would have been breaking a law had he not reported.
Alan Carpenter curiously let slip in his ABC radio interview on Friday morning that prior to this story breaking he’d been unaware of the requirement to report and so I asked Petrice Judge, executive director the Office of the DG of the DPC, how routine this kind of dobbing was.
She said: “For as long as I can remember, where there has been a suspicion of criminal conduct, matters have been referred to the Police and since its creation the Corruption and Crime Commission.” She even claimed responsibility and added “I refer any suspicion of criminal conduct matters to the Police and CCC.”
Given that no WA newsrooms have been raided like this for many years, if ever. This makes it evident that, if she’s telling the truth, and she routinely starts the ball rolling, that someone else further down the line routinely lets it roll into a gutter - but for some reason didn’t this time. As the referrals go to both places it seems there are two bodies routinely letting things slide.
It’s important to remember that while the CCC has been involved in some spectacular stories, much of its work is spectacularly mundane. It is the body responsible for investigating organised crime but it is also the body charged with investigating misconduct in the public sector, and (even more ho-hum) with educating the public sector about appropriate behaviour.
This is why the CCC Act 2003 is so acquisitive in terms of referrals. It wants information to build its bank of data about misconduct, not only so it can pursue prosecutions but so it write papers and train people.
Once the complaint about The Sunday Times Leak was referred to these two bodies the CCC declined to take action and referred the matter to the police where it ended up in the hands of the Major Fraud Squad (MFS).
The critical issue here is that both of these bodies had to make a decision about whether or not to pursue the matter. On the one hand there is a sense of obligation to look into the matters referred to them, on the other hand they have to make decisions about which cases to handle and which to leave in the pile of things that there aren’t sufficient resources to deal with.
A CCC media spokesman said last week that it declined to act on the DPC’s notification because it has far more complaints on its plate than it can handle and priority was being given to more pressing cases.
The MFS did pursue the issue, and different journalists speaking with various people within and connected to the MFS have been given a variety of explanations.
I spoke with a few different people from the police end of things but all insisted that I refrain from naming them, rendering their statements unverifiable hearsay, but in the interest of progressing the case, and giving other journos something to work with, I’ll share them anyway. (But not before taking a moment to revel in the irony of secretive behaviour in the context of this case).
One said: “We had no choice, it was a referral and so we had to act.”
Pressed to explain this, another one conceded that the police use their discretion about which investigations to pursue all the time. In this case the police followed through because they thought there was “a higher responsibility to investigate, given that the complaint was about corruption of public servants.”
One of my sources dismissed a claim in this week’s Sunday Times that 16 police officers were deployed on the day because the police force didn’t want to be criticised by the CCC, saying the police didn’t fear the CCC, but felt that the CCC should have handled the case and not referred it, because the CCC was more likely to have solved it given its “special powers”.
OK, but it is worth noting that the “special powers” of the CCC relate to its organised crime function and not its misconduct function, and unless the source (of the original article) was profiteering, this was more likely to be a misconduct kind of issue.
In the course of my conversations I heard that the officers involved weren’t happy about the raid, and they didn’t like the accusation that they were “storm troopers”.
I also heard from two sources that the Major Fraud Squad hasn’t been handling this kind of case for very long. These issues used to be handled by the Public Sector Investigations Unit that was merged with the MFS last November as part of a “resources rationalisation”.
Bingo! Perhaps this is the catalyst for change, the official rationale required to make it logical. While not ruling out the possibility of Humphrey-esque corridor conversations, it makes feasible the most benign possible version of events: “A routine cascade of bureaucratic actions resulted in 16 officers exercising their muscle in a newsroom.”
If this is the case, parliamentarians can only be blamed for passing the laws that made this cascade possible, not for interfering with the law. (I’m not sure that this is any less sinister, democratically speaking, but at least the blame is shared between the parties.)
And we can live in hope that the Major Fraud Squad has learnt what the CCC appeared to know already - that the media cares about press freedom and yowls like a pack of angry watchdogs if you squeeze it and so it’s best to use whatever discretion you have up your sleeve and to leave it alone.