The Australian Government has received advice from the Australian Federal Police into the leaking of official United States Government documents as part of the Wikileaks issue.We might appropriately ask why the Attorney General appears to be relying on legal advice from the Australian Federal Police rather than from his own Department (which as far as I'm aware is chock full of lawyers, some quite distinguished and presumably some with expertise in areas such as national security, statutory interpretation and the Crimes Act).
The AFP noted a number of offences which could be applied in the circumstances depending on whether all the elements of the offence could be proven.
Based on the information available to date, the AFP has not identified any criminal offences where Australia has jurisdiction and as a result have not commenced an investigation.
"The Government referred the matter to the AFP as it was prudent to examine whether any Australian laws have been broken," Attorney-General Robert McClelland said.
"As has previously been stated, given the documents published to date are classified by the United States, the primary jurisdiction for any investigation into the matter remains the United States."
"The Government remains extremely concerned about the unauthorised and irresponsible distribution of classified material."
Non-reliance on the Department is of particular interest, given that one rationale for slashing funding to essential bodies such as the Australian Law Reform Commission (ALRC) and the more decorative Australian Institute of Criminology (AIC) has been that A-G's would be 'bulked up'.
Not to be outdone, the AFP issued its own media release -
Media Statement: Finalisation of WikiLeaks referralIn October the Department of Defence offered reassurance, with a media release stating that -
On 30 November the Attorney-General’s Department referred the matter relating to the publishing of United States (US) embassy cables containing classified information on the WikiLeaks website to the Australian Federal Police.
The AFP examined material relevant to potential Australian offences to determine whether an official investigation was warranted.
The AFP has completed its evaluation of the material available and has not established the existence of any criminal offences where Australia would have jurisdiction.
Where additional cables are published and criminal offences are suspected, these matters should be referred to the AFP for evaluation.
An investigation by a Department of Defence Task Force has found that documents leaked by WikiLeaks have not had a direct significant adverse impact on Australia's national interests.
On the 25th of July this year, the WikiLeaks organisation released over 76,900 documents titled the 'Afghan War Diary' which were classified military documents relating to International Security Assistance Force (ISAF) activities in Afghanistan.
The Task Force conducted a detailed examination of the leaked materials to identify references to Australian interests and personnel. These results were compared with operational reporting and Defence public statements to determine the potential impact on Australian interests and personnel, including the operations of forces deployed in Afghanistan.
The investigation found that the leaked materials were predominantly tactical-level reporting, the majority of which was low-level operational reporting of activities such as patrols, community engagement and routine operational activities. Some of the documents also covered foreign diplomatic reporting.
The Task Force found that significant operational issues relating to Australia referred to in the leaked materials had already been publicly reported by Defence and, in most cases, reported in greater detail than in the leaked materials.
The review concluded that no local sources were clearly identified and steps have been taken to mitigate the risk of this occurring.
The investigation also found that current Defence processes for public reporting of significant operational events are appropriate. It also found that Defence achieves high levels of transparency while protecting information that could put the lives of Australian Defence Force personnel, our ISAF and Afghan National Security Force partners, and Afghan civilians at risk.
Earlier this month, WikiLeaks released another 400,000 documents titled the 'Iraq War Logs' and the Task Force is again examining the contents. The investigation will take some time, given the volume and complexity of the material. The findings of this investigation will also be released in due course.
