A hint of what the Australian Federal Police know concerning the Ashby-Brough affair

What Senate Estimates tells us this month: 

* Liberal MP for Fisher Mal Brough has been formally interviewed by federal police at least once; 

* hundreds of thousands of emails, documents and images have been seized from the homes of Mal Brough, James Ashby, Karen Doane and elsewhere; 

* the official charge being considered is unauthorised disclosure¹; 

* federal police have read “Ashbygate” by Ross Jones; 

* the Kingston Hotel in Canberra is well-known in Senate circles; and

* LNP Senator Ian Macdonald has no understanding of the Commonwealth Criminal Code.

SENATE LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE Estimates (Public) Tuesday, 9 February 2016:

[Labor, Victoria] Senator JACINTA COLLINS: I would like to ask some questions about the status of the AFP investigation into the theft of the official diary of the former Speaker of the House of Representatives. I appreciate the sensitivity of the matter, as the investigation obviously remains on foot, so I will be attempting to ask some fairly factual questions, but please let me know if you think it is inappropriate, given that the investigation is on foot. It has been reported publicly that the AFP raided the homes of Mr Brough, Mr Ashby and Karen Doane, looking for evidence in relation to the theft of the former Speaker's diary. Are those reports accurate?

[Australian Federal Police Commissioner] Mr Colvin: The way that you have characterised them, Senator, I guess is relevant to the investigation. We are making an investigation into the unauthorised disclosure of and access to the diary. I would draw a distinction between that and theft. I just want to be very careful about what we say.

Senator JACINTA COLLINS: Sure. So you do not think it is appropriate to discuss at this stage whether you have raided the homes of those people?

[Federal Attorney-General] Senator Brandis: Senator Collins, I think the point Mr Colvin was making to you is that there is no investigation into theft.

Senator JACINTA COLLINS: Okay. What language would you like to use, Mr Colvin?

Mr Colvin: We refer to it as unauthorised disclosure.

Senator JACINTA COLLINS: All right, we will use that language and I will ask the same question.

Mr Colvin: Yes. I am not trying to be picky on that.

Senator JACINTA COLLINS: That is fine.

Mr Colvin: In relation to matters that we have or have not done, some aspects of this investigation are already in the public arena, and I am happy to confirm matters that are in the public arena. But, to the extent that matters are not, it is not our normal course, as you would appreciate, to talk about what we may be doing. Deputy Commissioner Close has the details.

[Deputy Commissioner, Operations] Ms L Close: Senator, I can confirm that the search warrants were executed on premises for the three people that you have just mentioned.

Senator COLLINS: Are there any other search warrants that are fitting in with Mr Colvin's point and that are a matter of the public record?

Ms L Close: No, there are none on the public record.

Senator COLLINS: Am I correct in concluding that you do not want to discuss any that may have occurred but are not on the public record?

Ms L Close: That is correct.

Senator COLLINS: Okay. What is the current status of the investigation into Mr Brough's conduct?

Ms L Close: The investigation continues. As you can understand, we are relying heavily on electronic records, which we have obtained from various entities. Because of the complex nature of this matter we have also had to obtain legal opinion in respect of search warrants and other avenues of inquiry. Just to demonstrate, some of the investigation time frames are quite lengthy, because we have recovered, to date, in excess of 7,600 emails, 141,000 documents, 116,000-plus images and thousands of email attachments. That just highlights for you the extent of the investigation we are undertaking. 

Senator COLLINS: Are you able to tell me when you expect to be able to finalise the investigation?

Ms L Close: No.

Senator COLLINS: Does all that material you just referred to cover the book Ashbygate?

Ms L Close: No.

Mr Colvin: No.

Senator COLLINS: What are the possible outcomes of the investigation? What will happen when you conclude all of that work?

Ms L Close: We then make an assessment as to whether we believe there is sufficient evidence beyond reasonable doubt to have a prima facie case to put to the Commonwealth Director of Public Prosecutions. The Commonwealth DPP will then make a determination of whether there are any charges to be laid in respect of any people.

Senator COLLINS: And at this point in time you are not able to advise me of the time frame on which you think you will conclude your review of the material?

Ms L Close: Not at this point, no. 
Mr Colvin: Further to that, there are aspects of all investigations, and this one is no different, that are out of the control of the organisation. We are in the hands of processes, and sometimes individuals, that mean that we cannot give you a time frame with any degree of certainty.

Senator COLLINS: Mr Brough has remarked that he is willing to be interviewed by the AFP in relation to the criminal accusations that have been made against him. Has that interview occurred?

Ms L Close: We have spoken to Mr Brough, and that is on public record.

Senator COLLINS: When was that, and where did the interview occur?

Mr Colvin: I think in fairness to Mr Brough, if he wishes to make some of that material public then he may do that. We have not said that publicly and I do not think it is appropriate. We would not normally make that public. That is a matter for Mr Brough, if he wishes to.

Senator COLLINS: When you say, though, that you have spoken to Mr Brough, is that what would be regarded as an interview? Or have you a need for further interview?

Ms L Close: It really will depend on the analysis of all the material that I outlined to you earlier as to whether we need another interview or not.

Senator JACINTA COLLINS: Okay, but in terms of you looking at all the material before you, it was not just simply a preliminary discussion.

Ms L Close: We have had preliminary discussions—

[Nationals, Queensland] Senator O'SULLIVAN: Chair, could I just raise a point of order? I am struggling to see the relevance of this in the context of estimates. I would understand if the senator were pursuing details about the cost of these investigations, the volume of resources and the like. But we have quite literally hundreds of investigations underway at the moment that would have a political interest, and the trade movement and the like. We could spend the next week here examining the AFP's involvement. I just do not understand the relevance, and I would like you just to consider it and perhaps rule on it.

[LNP Queensland, Senator Ian Macdonald] CHAIR: It is relevant to the expenditure on wages and equipment.

Senator O'SULLIVAN: Well, if the questions were that, I would understand that, but that is not—

CHAIR: Well, that is not how they are being used, I guess, but I would allow it at this time.

Senator Brandis: I think the point is that Mr Colvin and Deputy Commissioner Close have made it clear that they cannot go beyond that which is on the public record, and that which is on the public record is already on the public record. So, I just wonder what it profits us to ask questions to which we already know the answer, since only matters to which we do already know the answers are appropriate objects of inquiry.

CHAIR: It is really up to the senator to use her time in whatever way she seems fit. As you say, even if the information is already there, if the senator wants to keep asking the same questions and gets the same answer, that is really up to her.

Senator JACINTA COLLINS: Thank you.

Mr Colvin: In answer to your question: I do not wish to discuss investigational strategies. Whether we decide to re-speak to Mr Brough in a formal or informal capacity, they are all matters that my investigators will make a judgement on depending on where the investigation takes them, and it is not something I wish to discuss openly.

Senator JACINTA COLLINS: No, and that was not really the point of my question. I was simply seeking to establish whether we were both talking about an interview, which is what Mr Brough had referred to, as opposed to some preliminary conversation to establishment.

Mr Colvin: I will leave that for Mr Brough to talk about, not us.

Senator JACINTA COLLINS: It has been reported that Mr Ashby has offered to provide the AFP with a copy of the document which he says proves that Wyatt Roy instructed him to steal the former Speaker's official diary. For example on 1 December—

Senator O'SULLIVAN: That is an emotively embedded question when the commissioner has made it very clear to you that there is no investigation on foot regarding theft. At least keep your language in accordance with the fact that have been presented to you in the evidence.

Senator JACINTA COLLINS: I suggest you go back to the buffet.

CHAIR: You have made your point of order on that one.

Senator Brandis: Mr Chairman, on the same point, if I may—and I know Senator Collins is a serial offender here—but if words are to be attributed to someone then the precise words they use, not a paraphrase of them, has to be put to the witness. On numerous occasions, in this forum and in the chamber, it has been discovered after Senator Collins has put a paraphrase of words to a senator or a witness that what she has put to the senator or the witness was not an accurate rendering of what they said.

Senator JACINTA COLLINS: That is simply untrue.

Senator Brandis: On numerous occasions I have caught you out doing this.

Senator JACINTA COLLINS: No, that is untrue. On numerous occasions you have practised malapropism, because you do not know how to apply words that you think are big and attractive. Senator Brandis: If you are going to attribute words which bear a very, very important insinuation against somebody's reputation then in fairness both to the witness and to the person whom you are trying to smear—

Senator JACINTA COLLINS: 'Smear' now? Stop imputing improper motives.

Senator Brandis: please put the direct speech to the witness or not at all.

Senator JACINTA COLLINS: Your behaviour is outrageous. I really do not know how Mr Turnbull puts up with you.

CHAIR: A point of order was raised and I am ruling on it. There is no point of order—

Senator JACINTA COLLINS: No, there is not. That is right.

CHAIR: but I am sure Commissioner Colvin will take the warning and will, himself, be cautious in how he answers the questions, as he always is, of course.

[Labor, Tasmania] Senator BILYK: It is all very draining now.

Senator JACINTA COLLINS: I mentioned that it had been reported and I was about, if I had been given one extra moment of oxygen, to quote that report. If Senator Brandis wants to take issue with the quotation he is encouraged to take issue with the ABC.

Senator Brandis: Then you will be kind enough to provide us with the source from which you are quoting.

CHAIR: The ABC.

Senator JACINTA COLLINS: Certainly, which I just did.

CHAIR: That is a reliable source. We can all rest assured now that this will be accurate.

Senator JACINTA COLLINS: On 1 December last year the ABC reported that: Mr Ashby has also claimed today that Assistant Minister for Innovation Wyatt Roy advised him to copy Mr Slipper's diary. CHAIR: And the question is?

Senator JACINTA COLLINS: No, I am going to go through the full quote, because I do not want to— Senator Brandis: Are you reading from the report or are you reading from words attributed in direct speech to Mr Ashby?

Senator JACINTA COLLINS: I am about to go to words directly attributed to Mr Ashby now, in The Australian newspaper.

Senator Brandis: In direct speech?

Senator JACINTA COLLINS: Yes.

Senator O'SULLIVAN: Chair, can we have a copy of this while this is happening so we can keep it in context and so we can follow the senator's efforts here?

Senator JACINTA COLLINS: Sure. In quotation of Mr Ashby: "Wyatt said he didn't really know how to advise me and said he wanted to speak with Christopher Pyne," Mr Ashby told The Australian newspaper. Again in quotation of Mr Ashby: "He then called me back and I went and saw him in his office and he presented me a sheet of paper with instructions of what I should do, and one of the first steps was to get a copy of the office diary." Still in quotation: 'That is how I came to be printing off a copy of the digital diary. It was evidence in my case.' That is the end of the quote. This is still from the ABC, though: Mr Ashby confirmed the quotes on Macquarie Radio this morning and said the sheet of paper would have Mr Roy's fingerprints on it. Finally, referring to Mr Ashby: 'And Wyatt's never denied giving me any assistance in the beginning,' he said. Following that public reporting, has Mr Ashby provided a copy of this set of written instructions to the AFP?

Mr Colvin: I am not aware of that particular report. I know it is not necessarily relevant to your question, I just think it would be very unwise for me to give an indication to the committee while this matter is still ongoing. That is directly relevant to the ongoing nature of the investigation, and it is just not something I am prepared to talk about publicly.

Senator O'SULLIVAN: Hear, hear.

Senator JACINTA COLLINS: I appreciate that. Senator O'Sullivan, maybe you were still down at the King O when I started these questions—

Senator O'SULLIVAN: You do not know where I was, and your comments are offensive and you should keep them to yourself.

Senator JACINTA COLLINS: We do know where you were.

CHAIR: Senator Collins, that is an offensive comment on a Senate colleague. I will not ask you to withdraw—

Senator O'SULLIVAN: For the record, I was not at the Kingston Hotel.

CHAIR: You do not have to say where you were.

Senator O'SULLIVAN: No, but I am just sick of this.

CHAIR: You should desist from that, though, because otherwise people will say you are always permanently drunk, Senator Collins, and that does not get us anywhere.

Senator JACINTA COLLINS: They are welcome to say that. It would not have much credibility.

CHAIR: Well what you are saying about Senate colleagues does not have much credibility either.

Senator JACINTA COLLINS: The issue is that I said at the outset of this discussion, and Mr Colvin remembers that because of the response he just made—

CHAIR: You made a snide comment to another senator, which should not happen. Go on with your question.

Senator JACINTA COLLINS: If you defended me as adequately as you are now him, obviously people would not feel encouraged to respond to poor behaviour. I understand that Mr Colvin does not want to respond to that question, and I accept his explanation of that. My next question—

Senator Brandis: I think Mr Colvin said it would not be appropriate to respond.

Senator JACINTA COLLINS: Yes, and I said that I accept that.

Senator Brandis: You said that he said he did not want to respond.

Senator JACINTA COLLINS: Will you stop being such a pedant? Seriously.

Senator Brandis: I think there is a difference.

Senator JACINTA COLLINS: It is very late at night, and your behaviour is very draining.

Senator Brandis: There is no reluctance on the part of these witnesses to respond to questions to which they feel they can respond appropriately. When the commissioner of the Australian Federal Police says that it is not a question to which he can appropriately respond, then that is the ground on which the question has not been answered—not because he does not want to provide the committee with all the information he appropriately can.

Senator JACINTA COLLINS: Senator Brandis, no one implying any differently. You are just making this tedious.

CHAIR: Let us move on. Your time has finished, but we can come back to you, Senator Collins. I will go to Senator O'Sullivan, but, before I do, as part of Senator O'Sullivan's time, could I just ask if the offence being considered or investigated is unauthorised disclosure? Is that right?

Mr Colvin: The circumstances that we are investigating is the unauthorised disclosure of the former speaker's diary. The offence that we may end up considering as the most appropriate—if we even get to that point—is still to be determined.

CHAIR: It is what?

Mr Colvin: It is still to be determined. We have a range of—

CHAIR: There is no technical offence of unauthorised disclosure, is there? That is not a criminal offence.

Mr Colvin: There are offences of unauthorised disclosure.

CHAIR: Where do they rate in the scale of offences? Are they like murder? Terrorism? Rape? Robbery?

Mr Colvin: Chair, that is very difficult for me to answer, because it depends upon the circumstances—for example, are there aggravated circumstances. All offences have penalties that the court can impose, and, clearly, unauthorised disclosure has a very different penalty to what a terrorism offence would.

CHAIR: There was a lot of discussion earlier about the cost and your resources and all this, and I was absolutely gobsmacked to hear Ms Close say that you have investigated thousands and thousands of emails and documents. I can well appreciate the questions on the use of your resources, when you are clearly involved in a huge amount of effort. Is someone, or are several people, going through every one of those emails, every one of those documents, with a magnifying glass, considering each aspect?

Ms L Close: Yes, we have investigators looking at every document that we have seized in relation to this matter.

CHAIR: That would be a very time-consuming exercise, I take it.

Ms L Close: Yes.

CHAIR: For something that I would have thought—and you can tell me I am wrong—in the course of criminal activities that the AFP look at would rank pretty low: unauthorised disclosure.

Mr Colvin: There are a few things there to consider. One is: the court will make determinations in terms of penalty of what gravity of offence the court may consider if somebody is convicted. But there are broader considerations for the AFP than just the penalty of the offence. It is the circumstances and the public interest in the matter. I am probably better off just leaving it at that.

Senator Brandis: I think, if I do not misunderstand what is being said, that it is actually not the offence of unauthorised disclosure; it is the offence of procuring another person to have unauthorised access. I do not think it is being suggested that Mr Brough himself had unauthorised access. I think it is being suggested by some that Mr Brough encouraged somebody else to have unauthorised access.

CHAIR: That would take it to being an even lesser matter, but I take Commissioner Colvin's point and will not pursue that. I hesitate to ask for this on notice, but can someone tell me the penalties that have been imposed on the last successful convictions for procuring someone to have unauthorised disclosure?

[Australian Greens, Tasmania] Senator McKim interjecting—

CHAIR: It is wasting resources, is my point, when we are dealing with criminals, thugs, rapists, murderers, and we have the AFP looking through hundreds of thousands of documents and emails for an offence which, even on conviction, I guess would get a good behaviour bond or something. That would be my experience of how lenient the courts are these days. How difficult would it be to get me some examples of the last time someone was convicted for procuring someone else to make an unauthorised disclosure? Would that be difficult to find?

Ms L Close: I am not aware of the last matter where a person was convicted, so we will have to take that on notice and do some research.

CHAIR: I do not want you to do too much research, because I for one appreciate that you have far more important things to do. But if it is easy to get the last couple of times there were convictions—if there have ever been any in the history of the Criminal Code of the Commonwealth—I would be interested to see when they were, what the penalty was and how many there were. With that, I will pass to Senator O'Sullivan.

1. Section 70—disclosure ofinformation by Commonwealth officers

3.91       Section 70 of the Crimes Act is the only provision remaining in pt VI of the Crimes Act.[125] A version of s 70 was included in the original Crimes Act in 1914, and was based on a provision of the Criminal Code Act 1899 (Qld).[126] This original version of s 70 was repealed and replaced in 1960 to extend the prohibition on the unauthorised disclosure of information by Commonwealth officers to include former Commonwealth officers.[127] While minor amendments have been made to s 70 on three occasions since 1960,[128] the substance of the provision has not changed since that time.

3.92       The effect of s 70 is to apply criminal sanctions to the breach of secrecy obligations by public officials.[129] Section 70 provides that:

(1)  A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

(2)  A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence....

What kind of information is protected?

3.100   Section 70 of the Crimes Act makes it an offence for a Commonwealth officer to disclose ‘any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer’. On its face, s 70 could apply to the disclosure of any information regardless of its nature or sensitivity.

An example of conviction for unauthorised disclosure: R v Scerba (No 2) [2015] ACTSC 359 (5 November 2015)

Decision:

1.                   Michael Scerba be convicted of unauthorised disclosure of information by a Commonwealth officer. 2.                   Michael Scerba be sentenced to twelve months imprisonment to commence today, 5 November 2015. 3.                   On 4 February 2016, after serving three months imprisonment, and upon giving security in the sum of $500, Michael Scerba be released on the condition that he be of good behaviour for a period of two years. 4.                   Pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon application of the Director of Public Prosecutions, the following items, seized by members of the AFP during the execution of a search warrant at [redacted], Richardson in the ACT on 21 October 2012, be forfeited to the Commonwealth: a.                   All hard drives contained in the black ‘ANTEC’ computer tower (item no 001 recorded on property seizure record A228052); and b.                  5 x shards/pieces of compact disc (item no MS/ET/45 recorded on property seizure record A228055)