The Australian Federal Police has referred a brief of evidence to prosecutors relating to the ABC’s investigation of alleged war crimes by Australian troops in Afghanistan.
In a statement on Thursday, the AFP said it had forwarded documents to the commonwealth director of public prosecutions in relation to the case, which began in July 2017 and culminated in a raid on the ABC’s headquarters in June 2019.
The ABC reported that the brief of evidence relates only to the journalist Dan Oakes and not to Sam Clark. The pair spearheaded the 2017 Afghan Files investigation, which uncovered alleged unlawful killings by Australian troops in Afghanistan.
The referral is a procedural step that follows police investigation, for prosecutors to decide whether to push ahead with prosecution if there are reasonable prospects of securing a conviction and the public interest requires it.
The attorney general, Christian Porter, has said he is “seriously disinclined” to approve prosecution of journalists but has given no guarantees.
An AFP spokesman said it had received a referral on 11 July 2017 from the chief of the defence force and the then acting secretary for defence in relation to the broadcast and publication of information assessed as classified material.
“A brief of evidence has now been forwarded to the Office of the Commonwealth Director of Public Prosecutions,” he said, adding the AFP would make no further comment.
Oakes responded to the referral, by saying “whether or not we are ever charged or convicted over our stories, the most important thing is that those who broke our laws and the laws of armed conflict are held to account”.
The ABC released a statement saying it fully supported Oakes and said his reporting was accurate and “clearly in the public interest”.
“This is a disappointing and disturbing development. The Afghan Files is factual and important reporting which exposed allegations about Australian soldiers committing war crimes in Afghanistan. Its accuracy has never been challenged,” the statement said.
The raid of the ABC’s headquarters, along with a similar raid of the News Corp journalist Annika Smethurst’s home, sparked a high-profile public campaign around press freedom in Australia.
Smethurst had success in court challenging the validity of the raid warrant and the AFP subsequently ruled out pursuing a prosecution against her, but the ABC failed in a similar federal court challenge.
In May, Labor’s shadow attorney general, Mark Dreyfus, welcomed the AFP’s decision not to pursue Smethurst, but noted that Clark and Oakes “still have the very real threat that they will face criminal charges for just doing their jobs”.
On Thursday he called on Porter to “bring this sorry saga to an end by immediately announcing that he will not consent to any prosecution of both Sam Clark and Dan Oakes”.
“Unlike the Morrison government, Labor believes in freedom of the press and the public’s right to know.”