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AFP sends brief of evidence to federal prosecutors over ABC’s ‘Afghan Files’

A little over a year since raiding the ABC’s headquarters, the Australian Federal Police (AFP) has asked federal prosecutors to consider laying charges against journalist Dan Oakes over the 2017 reports known as ‘The Afghan Files’.

While the series, which uncovers allegations that Australian soldiers unlawfully killed 10 men and children in Afghanistan, was written by both Oakes and Samuel Clark, a fellow ABC journalist, only Oakes has been pursued in the brief of evidence the AFP has sent to the Commonwealth Director of Public Prosecution.

“The ABC has been advised by the AFP that they won’t be taking any further action against me,” Clark wrote on Twitter, noting that Oakes was still facing the threat of charges for “his dogged and brave reporting”.

“I am not celebrating. I am not relieved. I will not breath[e] easy until Dan no longer faces criminal charges for simply doing his job.”

The ABC offices in Sydney were raided on 5 June 2019

The Commonwealth Director of Public Prosecution will now decide whether to press charges, however Attorney-General Christian Porter would have to approve prosecution of Oakes. After the AFP raided the ABC’s Ultimo offices just a day after also raiding News Corp journalist Annika Smethurst’s home in response to a separate story, Porter instructed prosecutors not to charge the three journalists without his formal approval.

While the AFP recently announced it would not lay charges against Smethurst, it’s unclear how much longer Oakes will have to wait to learn of prosecutors’ decision. As Clark tweeted: “I was a suspect for 658 days. Tomorrow Dan wakes up to his 659th day facing the very real prospect of being charged over stories that were plainly in the public interest. Journalism is not a crime.”

Oakes said that “the most important thing is that those who broke our laws and the laws of armed conflict are held to account.

“And who knew what? Upper echelons of Defence and intelligence communities are littered with men – always men – who presided over our special forces’ activities in Afghanistan. Do they escape scrutiny while operators are held to account?”

Both Clarke and Oakes encouraged people to read the seven-part series that Oakes is facing charges over.

The industry’s union called for the end of the investigation, and said “government agencies have moved with greater speed against a whistleblower and a journalist than they have in their investigation into the alleged war crimes”.

“It’s particularly cruel that Dan, and his colleague, Sam Clark, have had to wait so long to learn what will happen to them,” the Media Entertainment and Art’s Alliance’s federal media president, Marcus Strom, said.

“The ABC’s journalism clearly embarrassed the Government and the Department of Defence because they had classified the war crimes allegations as ‘secret’ so it could be hidden from the public. In fact, the story needed to be told because it was clearly in the public interest. We now know, from subsequent news stories, that there are multiple allegations of war crimes under investigation. And yet it is the truth tellers who face jail time.

“We should never forget that the AFP used a dangerously wide-reaching search warrant when it raided the ABC. It allowed the AFP to ‘add, copy, delete or alter’ material in the ABC’s computers. Such powers in the pursuit of whistleblowers and the criminalisation of legitimate public interest journalism should have no place in our democracy.”

Following the AFP’s raid, the ABC commenced legal action, arguing the warrant was “legally unreasonable”. In February, the Federal Court dismissed the case and ordered the ABC to pay costs in a decision managing director David Anderson called a “blow” for public interest journalism and the public’s right to know. The public broadcaster decided not to appeal the court’s ruling, but has stood by the reporting.

“There has never been a question over the accuracy or importance of the Afghan Files stories or whether they were in the public interest,” Anderson said at the time.

“Yet potentially our reporters could still be charged with offences carrying jail terms. They have now had this threat hanging over their heads for almost two years.”

Two months later, the High Court ruled that the warrant used to raid Annika Smethurst’s home was not valid.

Last week, the ABC revealed that, in order to cope with a $41m budget shortfall each year until 2022, it would axe the flagship 7:45am bulletin and the ABC Life brand, among other measures. Up to 250 redundancies will be necessary due to a loss of $783m in funding by 2022 under Coalition governments, according to research conducted for Get Up by think tank Per Capita. In 2019/20, the ABC’s funding is $879m, representing a decrease in real funding of $367m per year since 1985/86.

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