WITH every day that passes, the likelihood increases that the Australian Federal Police will pay a real price for last week’s raids on the Sydney offices of Seven West Media and its lawyers, Addisons.
That is as it should be. It would be the most effective way of encouraging better judgment and greater legal rigour at the senior levels of the national police force.
The big lesson from last week’s raids by 34 police, some of them armed, is that an arm of the state should be permitted forcible entry to the offices of law firms and media outlets only when there is clear justification.
On the face of what happened last week, and the failure of the AFP to take any further action, that condition does not appear to have been met.
If there is something more, it should emerge during the Federal Court proceedings that Seven launched yesterday aimed at quashing the search warrants that formed the legal basis for the raids.
If Seven wins on that issue, stand by for civil actions against the AFP for trespass.
Before the raids, there were plenty of rumours that Seven had agreed to pay drug smuggler Schapelle Corby for an interview. There was also plenty of public debate about how dreadful it would be for Corby to benefit from her crime.
Inside the AFP, it would be completely understandable if there was a determination to prevent the agency being embarrassed by moving too little and too late to enforce a confiscation order under the Proceeds of Crime Act.
Speculation, rumour and potential embarrassment are not grounds for forcible entry to law firms or media outlets.
Unless accompanied by something more, those factors do not amount to reasonable grounds for a raid and the removal of documents.
The police still have a sealed computer hard drive that was taken from the offices of Addisons and is subject to an unresolved claim of client legal privilege.
The cost of enforcing that claim of privilege will rest entirely with Addisons, which bears the onus of going through every document on that hard drive and persuading a court about what material should remain confidential.
Few would criticise the AFP for enforcing the Proceeds of Crime Act, but these raids reveal a terrible lack of perspective and poor procedural work.
That assessment is based on these facts: Seven says there never was a deal with Corby. The raids appear to have drawn a blank on that front, which supports Seven’s position.
Before the raids took place, Seven and Addisons had been complying with AFP production orders aimed at unearthing Corby-related material.
But that is being contested, and it is easy to see why. If Seven had been complying with orders seeking the production of Corby-related documents, why was it necessary to launch a raid of the type and scale that would be expected to be unleashed against a terrorist cell?
It needs to be kept in mind that the Proceeds of Crime Act results, at the most, in civil confiscation orders. Even if Seven paid millions to Corby, it would not be a criminal offence.
Was it really a rational use of police resources to send 34 officers charging around Sydney on a civil matter?
On Wednesday, AFP Commissioner Tony Negus came under pressure over statements he made during Monday’s Senate estimates hearing. This is just the beginning of what is likely to be a long debate on whether the raids were necessary.
Seven chief executive Tim Worner wrote to Negus disputing the accuracy of statements by the commissioner and his deputy, Michael Phelan.
Worner sought an assurance Negus would not repeat the contested statements. His letter says that on six occasions, Negus and Phelan told the hearing Seven had told the AFP it had no further documents.
“Seven disagrees that you have accurately represented or conveyed Seven’s response to the AFP,” the letter says.
“At no time did Seven or its representatives make an unqualified statement to the AFP that Seven had no further documents or words to that effect. Quite the opposite; Seven frankly admitted it was still searching for documents but said there were none in relation to its television programs that met the terms of the production order, and that there were no funds payable under its agreement with Mercedes Corby of February 7.
“I would appreciate your assurance that you will not make any further statement in any forum to the effect that Seven, or its solicitor, at any stage during the production order process has informed the AFP there are no further documents,” Worner says.
So what does the AFP have to say about this?
Asked if Negus would meet Worner’s request and whether he stood by the accuracy of what he said during the Senate hearing, an AFP spokesman said it was not appropriate to comment because the matter was subject to legal proceedings.
This aspect of the affair does not even figure in Seven’s Federal Court action. It is best described as a loaded weapon held in reserve.
The court action seeks to quash the search warrants that underpinned the raids on grounds closely linked to the AFP’s apology to Addisons partner Justine Munsie for raiding her firm using a court order that wrongly said she was suspected of an offence.
It seems there were others also named by the AFP.
“The search warrants were predicated on certain persons or entities being suspects when there was no evidence or other material to justify the decisions to issue the search warrants being made on that basis,” Seven says in its application for judicial review by the Federal Court.
It is already clear it was a mistake to remove the Director of Public Prosecutions from involvement when it comes to unleashing police raids based on the Proceeds of Crime Act.
Had the AFP been required to gain DPP approval before last week’s action, there is every likelihood the police might not have gone ahead.
And if the raids did go ahead, there would have been a greater prospect the DPP’s overview might have saved the AFP from having to apologise to Munsie for what the police, with astounding hide, referred to as a word-processing error.
The involvement of the DPP in this process ended years ago. It needs to be restored. And if that causes embarrassment to the AFP, that is one more part of the price that needs to be paid.
Every law firm and media outlet needs this assurance.
Originally published as Police set to pay for raids on Seven
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