Case Summary and Outcome

The Federal Court of Australia ruled against Australian Broadcasting Corporation [ABC] holding it liable for prosecution under Section 73A of the Defence Act. The case involved ABC telecasting a controversial series “The Afghan Files” that highlighted the operations conducted by the Australian Defence Force (ADF) in Afghanistan. ABC was alleged to have disclosed sensitive “military information” in the series. Australian Federal Police [AFP] took the matter under consideration and started an investigation whereby it searched the premises of ABC under a warrant. ABC challenged the legality and validity of this warrant.  The Court held that immunity granted to the confidential source of information is not absolute and the applicant can lawfully be compelled to disclose the source identity. The Court recognized the warrant as valid even though, it purported to confer broad-ranging authority to AFP for search and seizure. Further, the Court refused to accept that the wide ambit of the warrant violates Section 3E of the Crimes Act. Finally, it observed that the applicants’ argument of a chilling effect which such a warrant might create is unpersuasive and cannot be considered a lawful ground to challenge the warrant. The petition of the applicant challenging the warrant was therefore dismissed by the Court.

---

Facts

The applicant Australian Broadcasting Corporation [ABC] telecasted the controversial series “The Afghan Files” highlighting the operations conducted by the Australian Defence Force (ADF) in Afghanistan. In one of the episodes, Mr Oakes and Mr Clark [investigative journalists] alleged the unlawful killings of Afghanistan civilians’ by the army. They relied on the information provided to them by a few informants. In lieu of information, they promised not to disclose the identity of the informants. In order to conceal their identity, the series stated that the information was sourced from confidential sources. They also disclosed a few confidential documents provided to the channel by Mr McBride which were classified as “SECRET”.

The Australian Federal Police [AFP] thereafter, launched an investigation into this matter by arresting Mr David McBride. AFP also conducted a search in the premises of ABC under a warrant issued by the registrar Kane upon an application made for such issuance. The material related to the confidential information was seized by AFP.

The warrant was issued under section 3E of the Crimes Act which states:
• An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

The offence provisions listed in the warrant referred to section 73A of the Defence Act and sections 131.1(1) and 132.1 of the Criminal Code which state respectively:

Unlawfully giving or obtaining information as to defences – A person who is a member of the Defence Force or a person appointed or engaged under the Public Service Act 1999 commits an offence if:
• the person communicates to any other person any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information; and
• the communication is not in the course of the first-mentioned person’s official duty.

Theft – A person commits an offence if:
• the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property; 

Receiving stolen property – A person commits an offence if:
• the person dishonestly receives stolen property, knowing or believing the property to be stolen.

ABC thereafter challenged that search warrant and the search undertaken at its premises, seeking relief via a declaration that the search warrant itself, as well as the actual search and seizure of material pursuant to it, was invalid and that AFP agents are not entitled to examine the material seized; an order for any material seized be returned; and an injunction to prevent the AFP from dealing with the seized material in any way.

---

Decision Overview

Justice Abraham delivered the opinion of the Federal Court of Australia. The main issue before the Court was whether the warrant issued to the AFP was valid under section 3E of the Crimes Act and, thus, whether the search and seizure from the ABC premises was lawful.

Before analysing the case, the Court made several key observations. First, it noted that the validity of the search warrant would be assessed based on the legal standards and circumstances at the time it was issued (Williams v Keelty [2001] FCA 1301). Second, the Court explained that the warrant followed a “three-condition format” (Dunesky v Elder [1994] FCA 1569), which specified: (1) the items to be searched for, such as correspondence, emails, and documents marked “Secret”; (2) the people, entities, or topics those items were related to, including David McBride, ABC, ADF, and Afghanistan; and (3) the offences those items might provide evidence of, such as Mr McBride allegedly sharing military information with Mr Oakes in breach of section 73A(1) of the Defence Act 1903.

The Court also noted that the offences listed in the warrant covered only the sharing of information between Mr McBride and Mr Oakes, not its publication by ABC. Consequently, the warrant extended to material beyond what had already been made public in the ABC’s “Afghan Files Stories” broadcast. Additionally, the Court observed that Mr McBride had publicly admitted in the “Sydney Morning Herald” to being the source of the ABC’s information, meaning his identity was no longer confidential. Furthermore, ABC had withdrawn its submission that the warrant infringed the implied freedom of political communication before the hearing, and the Court highlighted that ABC did not argue the invalidity of section 73A of the Defence Act on these grounds. Lastly, the applicant did not dispute that it was reasonable for the registrar to conclude there was evidence on the ABC premises related to the offences identified in the warrant.

Afterwards, the Court moved to examine whether the warrant’s format failed to provide a sufficient perimeter to the evidence it authorised for search and whether the listed offences were vague.

On the one hand, the applicant argued that the search warrant was invalid on its face because it did not adequately define the material authorised for seizure by the AFP, as required by sections 3E(1), 3E(5)(a), and 3E(5)(c) of the Crimes Act. Analysing the terms of the warrant, ABC noted that its scope was overly broad—of the “widest ambit”—and could potentially encompass anything on the ABC premises. ABC also criticised the statement of offences as “vague and uncertain,” arguing it failed to reference any specific offences. In particular, ABC contended that the term “military information” introduced “such a degree of ambiguity and uncertainty” that it rendered the warrant invalid [para. 91]. As such, the applicant claimed the warrant provided insufficient guidance for the executing officer to determine what fell within the scope of the search and seizure.

On the other hand, the respondents submitted that the warrant was sufficiently clear about the scope of the search and the offences under investigation. They acknowledged that the warrant was “widely drawn” regarding the items to be searched for and the people, entities, or topics to which these items related. However, they argued that the statement of offences clearly limited the search to the transfer of information between Mr McBride and Mr Oakes, which informed the “Afghan Files Stories.”

The Court held that the ABC had not demonstrated that the scope of the warrant failed to provide “meaningful parameters” or that the term “military information” was “ambiguous and uncertain.” Justice Abraham noted that the applicant erred in interpreting the conditions in isolation rather than in the context of the warrant as a whole. While the Court acknowledged that the warrant’s scope was broad, it emphasised that the statement of offences “does bear most of the work,” which is “typical” for a warrant. Furthermore, in response to the applicant’s claim that the statement of offences provided “no meaningful parameters” for the search, the Court cited Beneficial Finance Corporation v Commissioner of the Australian Federal Police [1991] FCA 92, noting that offences listed under a warrant “need not be made with the precision of an indictment” [para. 120]. Ultimately, the Court concluded that the warrant, “read as a whole, sufficiently specified the perimeter for the search and seizure authorised by the warrant” [para. 126]. Therefore, the search warrant was found to be valid.

The Court then assessed whether the warrant authorised the seizure of material unrelated to the specified offences under the Defence Act.

ABC presented two arguments. First, it argued that the warrant allowed for the seizure of material not relevant to the first two offences, i.e., unlawfully giving or obtaining information regarding defences, as outlined in section 73A of the Defence Act. Second, ABC claimed that the term “military information” used in these offences was “misleading or uncertain” for the reader. ABC further argued that Registrar Kane did not meet the requirement under section 3E(5)(a) of the Crimes Act, i.e., to state in the warrant the offence to which the warrant relates, because the material seized under the warrant, relating to the “Afghan Files Stories,” did not constitute “military information” as defined by section 73A of the Defence Act. Instead, ABC asserted that even if “military information” had a clear meaning, it was far broader than just “information about military buildings or installations” [para. 132]. This, ABC argued, indicated that Registrar Kane misinterpreted section 73A and that, if he had interpreted it correctly, he might not have issued the warrant or would have issued it in different terms, thereby applying an incorrect interpretation of section 73A.

The Court rejected ABC’s arguments and accepted the respondents’ interpretation that sections 73A(1) and (2) “clearly describe the suspected offences” [para. 133]. Citing Deputy Commissioner of Taxation v Clark [2003] NSWCA 91, the Court reasoned that general words should be interpreted within “the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute” [para. 143]. The Court agreed with the respondents’ submission that a “purposive reading” of the warrant was required under section 15AA of the Acts Interpretation Act. Consequently, it determined that the term “defences” in the warrant, within the context of the Defence Act and its broader provisions, encompassed all matters of “assistance to an adversary” [para. 168]. Regarding the wording of the warrant, the Court concluded that “there is no reason to suppose nor any basis to contend that the reader of the warrant would have misunderstood the meaning of ‘military information’ in the context in which it appeared” [para. 173]. Accordingly, the Court dismissed ABC’s argument that Registrar Kane had misinterpreted the offence provisions or failed to comply with section 3E(5)(a).

Remaining issues

1. Source protection
Furthermore, the Court addressed the issue of identity protection for confidential sources, noting that section 126K of the Commonwealth Evidence Act did not apply to Mr McBride as his identity was already known (Ashby v Commonwealth of Australia (No 2) [2012] FCA 766). The Court acknowledged the unresolved state of source protection law in Australia [para. 181] and began its analysis with John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346, which emphasised the importance of confidentiality for investigative journalism [para. 182]. However, it agreed with the respondents’ argument of Cojuangco’s rejection of absolute source protection, claiming it would prioritise press freedom over individuals’ remedies for defamation [para. 184-186]. They also cited U.S. cases, including Branzburg v Hayes et al 408 US 665 (1972) and Zurcher, Chief of Police of Palo Alto et al v Stanford Daily et al 436 US 547 (1978), which rejected the idea that search warrants would chill journalism, holding that proper warrant procedures sufficiently protect journalistic practices without granting absolute privilege [para. 190-192].

The applicant countered that the interpretation of freedom of expression in the U.S. differs significantly from Australia’s implied freedom of political communication, as established in Brown v Tasmania [2017] HCA 43. In Australia, speech is protected only insofar as it supports the democratic system, while in the U.S., free speech is an affirmative right. The Court agreed, finding U.S. jurisprudence illustrative but not directly applicable, however, ruled that the U.S. jurisprudence merely highlighted the public interest in investigating crimes, not an adoption of U.S. principles in Australia.

Finally, the Court evaluated Professor Ricketson’s claim that revealing sources would deter informants. Justice Abraham rejected the “chilling effect” argument, noting it is rooted in U.S. constitutional law and irrelevant to the Australian context [para. 231]. The Court also disputed Professor Ricketson’s interpretation of the Australian Journalists Association Code of Ethics and found that absolute immunity, which he suggested was necessary, is neither recognised nor supported by section 126K of the Commonwealth Evidence Act, as ruled in Nicholls v Director of Public Prosecutions for South Australia [1993] SASC 3964.

2. Legality of the warrant issuance
The applicant argued that the decision to issue the warrant was ultra vires of section 3E(1) of the Crimes Act, in consideration of the implied freedom of political communication. Citing Miller v TCN Channel Nine Pty Ltd [1986] HCA 60, ABC submitted that an issuing officer cannot exercise the authority under section 3E(1) in a manner inconsistent with the implied freedom. The applicant further submitted that section 3E would be invalid in particular circumstances where the statute permitted a “broad-ranging search of the premises of a news organization, with no conditions protecting the identity of confidential sources.” [para. 263] Referencing Miller v TCN Channel Nine Pty Ltd [1986] HCA 60, the applicant clarified that section 3E must be limited via the conditions so that “any attempt to exercise the power inconsistent to that falls outside the proper construction of the section”. [para. 257] ABC, therefore, submitted that section 3E is not prima facie invalid, but would be if its authority were not limited so as not to excessively infringe on the implied freedom.

In response, the respondents countered that the applicant had not denied the constitutional validity of section 3E of the Crimes Act, either in general or in its application to this case. Therefore, this submission by the applicant should be dismissed. Without challenging the validity of section 3E, according to the respondents, ABC accepted that “any burden on political communication affected by section 3E is justified (and thus valid) across the whole range of potential outcomes of the exercise of power under that provision”. [para. 250] The respondents supported this interpretation of the applicant’s position, holding that section 3E is, in fact, “wholly valid, in all of its operations.” [para. 250]

The Court noted that the applicant contended that their position aligned with the precedent set in Comcare v Banerji [2019] HCA 23. However, both Banerji and Wotton clarified that assessing whether a provision granting discretion unlawfully burdens the implied freedom of political communication requires examining the provision’s terms across all potential applications, not just in specific instances. This is because constitutional constraints apply to the legislation itself, not to individual exercises of discretion. In contrast, the applicant’s argument focused solely on the specific warrant issued in their case, emphasizing the particular circumstances and factual matters involved. They did not evaluate the provision’s broader implications, thereby failing to align with the comprehensive approach mandated by Banerji. Consequently, the applicant’s argument, limited to this warrant’s specifics, was inconsistent with the established constitutional analysis framework. [para. 267]

The Court turned to analyse section 3E of the Crimes Act, noting that it authorises the issuance of a warrant as part of a criminal investigation, provided the issuing officer is satisfied that specified preconditions are met. The Court held that section 3E’s authority to issue warrants constitutes a “validly conferred power across the whole range of its operations.” [para. 271]

To determine whether a provision impermissibly burdens the implied freedom, the Court applied the test established in Lange v Australian Broadcasting Corporation [1997] HCA 25:
1. Does the law effectively burden the implied freedom in its terms, operation, or effect?
2. If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? [para. 273]

The Court then applied the Lange test, examining the burden, purpose, and proportionality of the statute.

Concerning the burden, the Court acknowledged that warrants related to evidence obtained from confidential sources within news organisations may “indirectly impose a burden on the implied freedom.” [para. 320] However, it distinguished between burdens that have a direct and substantial effect and those that have an indirect and incidental effect on the freedom of communication (Hogan v Hinch [2011] HCA 4). On this basis, the Court rejected the applicant’s claim that the warrant imposed a “substantial or significant” burden on the implied freedom. Justice Abraham emphasised that the warrant was sought only after Mr McBride publicly disclosed that he had leaked confidential documents to ABC journalists.

As for the purpose, the Court determined that section 3E serves a legitimate purpose as an investigatory tool for gathering evidence related to criminal offences. The specific warrant in this case was deemed “entirely legitimate.”

Regarding the proportionality, the Court focused on the “broader ramifications” of the applicant’s argument rather than the specific warrant at issue. These ramifications could affect any future warrant involving “a particular type of news organisation where there is a risk that a confidential source might be exposed during the execution of the warrant.” [para. 336] The Court held that there is “no legal basis for such a condition” that would preclude the seizure of materials capable of identifying confidential sources. [para. 343] The Court found such a condition impractical, reasoning that unless journalists or news premises were deemed “immune from investigation” or source protection was made absolute, the risk of a “chilling effect” would persist. Finally, the Court cautioned that “the applicant’s submission appears to treat the implied freedom as a personal right, or comes perilously close to doing so.” [para. 338]

Accordingly, the Court held that the purpose of section 3E of the Crimes Act justifies any burden it imposes on the implied freedom. The section’s purpose was deemed “legitimate” and “reasonably appropriate” to achieve its objectives. Consequently, the issuance of the warrant was determined not to exceed the legal scope of authority.

3. Legal reasonableness of seeking and issuing the warrant
The applicant submitted that an assessment of legal unreasonableness can be “outcome focused,” without requiring the identification of a specific jurisdictional error, citing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1. ABC contended that the question before the Court was whether the decisions in this case had an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li [2013] HCA 18) and whether they “[fell] within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” [para. 349]

The applicant argued that the decisions to seek and issue the search warrant on such broad terms lacked reasonable justification. ABC advanced three reasons to support their submission of legal unreasonableness:
1. The terms of the warrant “were not narrowly confined, but purported to authorise a very broad search.” [para. 351]
2. The “breadth of the search that the warrant purported to authorise” was both unnecessary and “inexplicable,” given what the AFP knew from press coverage of Mr McBride at the time of authorisation. [para. 351]
3. The breadth of the warrant was unreasonable, considering the “risk that such a broad and unconfined search would pose to the protection of the identity of confidential sources.” [para. 351]

The respondents countered that the authority to issue a warrant depends on the issuing officer’s satisfaction that it is reasonable to suspect evidence relevant to particular offences is present at the premises. Citing Williams v Keelty [2001] FCA 1301, the respondents noted that this constitutes a “low threshold requirement,” not necessitating “proof of those offences.” [para. 353] They also argued that the applicant bears the responsibility of proving that Registrar Kane could not have reasonably reached this conclusion, which, citing Wong v Commissioner, Australian Federal Police [2014] FCA 443, is a “difficult and exacting task.” [para. 353] Furthermore, the respondents disputed the applicant’s claim, arguing that the AFP did not know “with particularity” which documents the ABC had received from Mr McBride. They also contended that the risk identified by the applicant did not “render the seeking or issuing of a search warrant legally unreasonable.” [para. 357]

In its analysis, the Court first outlined the standard for determining whether a decision is legally unreasonable, citing Singh v Minister for Home Affairs [2019] FCAFC 3: the question depends on whether “the decision is within the scope of the statutory authority conferred on the decision-maker.” [para. 358] The Court emphasised that this assessment requires more than showing that “the decision is one upon which reasonable minds may differ” (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16). [para. 361] The Court further noted that the police commissioner has a “broad discretion as to the use of police investigative powers,” including the authority to seek warrants (Hinchcliffe v Commissioner of the Australian Federal Police [2001] FCA 1747). [para. 363]

The Court then considered the three arguments advanced by the applicant:
1. It held that the terms of the warrant in this case satisfied the requirements for validity.
2. It rejected the applicant’s assertion that the AFP would have known the specific documents of interest, explaining that a warrant may seek a broader category of material “as to which there are reasonable grounds for suspecting that it will afford evidence.” Such material is not limited to documents provided by Mr McBride. [para. 370]
3. It concluded that the applicant failed to demonstrate how the implied freedom of political communication and the importance of source confidentiality are “relevant to the question of whether the decision to apply for and issue a warrant under section 3E of the Crimes Act is unreasonable.” [para. 371]

The Court ultimately determined that it would be illogical to require a condition protecting the identity of confidential sources for a warrant to be deemed legally reasonable.

4. Return of seized material
The Court held that even if it were incorrect in concluding that the warrant was valid, it would not order the seized material to be returned to the ABC. Whether material is to be returned is a matter of judicial discretion, guided by the principles outlined in Puglisi v Australian Fisheries Management Authority [1997] FCA 846.

Applying these principles to the present case, the Court found that the circumstances weighed against returning the material. First, the AFP had liaised with the ABC before executing the warrant and offered to coordinate their search, a step that would have “reduced if not alleviated” the applicant’s concerns if accepted. Second, the AFP took measures to minimise the intrusiveness of the warrant’s execution, such as conducting the search in a room on the applicant’s premises with an ABC employee operating the computer. Third, all seized material was stored on two sealed USB sticks, which the AFP assured the Court would neither be disclosed nor acted upon. Finally, communication between the applicant and respondents prior to the warrant’s execution clearly established that the search was solely related to the Afghan Files stories.

In conclusion, the Court held that the applicant had failed to establish any of the grounds of their application, which was accordingly dismissed with costs.

---