Politicisation of the Australian Federal Police: Misusing Authority to Suppress Dissent and Weaken the Rule of Law

Abstract

The Australian Federal Police (AFP) has long been entrusted with the crucial responsibilities of ensuring national security and upholding justice. However, recent allegations suggest a disturbing trend towards politicisation, wherein the AFP is accused of misusing its authority to target journalists, whistleblowers, and activists. Such actions not only suppress dissent but also undermine the very foundations of democratic freedoms and erode the independence of law enforcement, ultimately weakening the rule of law. This blog post examines key cases – including the 2019 media raids, the Witness K prosecution, activist surveillance, and the policing of COVID-19 protests – to illustrate how political influence is shaping the operations of the AFP. It explores the principles of police independence, evaluates the democratic consequences of these actions, and proposes legal reforms aimed at restoring impartiality. Addressing these critical issues is essential to protect Australia’s democratic values and ensure that law enforcement prioritises public interest over political agendas.

Introduction

The rule of law is predicated on the existence of independent law enforcement that is free from political interference. This independence is vital for upholding fairness and safeguarding democracy. The AFP, established under the Australian Federal Police Act 1979, is tasked with combating serious crimes such as terrorism and organised crime. However, it is increasingly facing scrutiny for its perceived politicisation, which manifests in actions that appear to align with government interests rather than genuine threats. This alignment threatens the separation of powers, stifles free speech, and erodes public trust.

Several notable cases highlight this troubling trend: the 2019 media raids targeting journalists, the prosecution of Witness K, the surveillance of activists, and the heavy-handed policing of COVID-19 protests. Each case raises serious concerns about the AFP’s autonomy and its commitment to democratic principles. This post argues that the politicisation of the AFP threatens the rule of law and its independence, ultimately weakening Australia’s democracy. Through an analysis of these cases, we will identify patterns of misuse, anchor our discussion in a framework of police independence, evaluate the broader implications, and propose necessary legal reforms.

Theoretical Framework: Politicisation and the Rule of Law

At the core of the rule of law is the demand for accountability to transparent and impartial legal standards. Police independence is crucial for ensuring that investigations are conducted based on evidence rather than political agendas. Politicisation occurs when law enforcement prioritises government interests, often through selective enforcement, which risks sliding into authoritarianism by silencing dissent – a fundamental safeguard of democracy (McCulloch, 2004).

While the AFP reports to the Attorney-General, it is imperative that it maintains operational autonomy as stipulated in the Australian Federal Police Act 1979. However, the expansion of powers following the events of September 11, 2001, through legislation such as the Criminal Code Act 1995, has broadened the AFP’s scope with limited oversight, thereby increasing its susceptibility to political influence.

Scholars, including Jude McCulloch, have argued that these laws blur the lines between policing and political control, framing dissent as a security risk. Although the principle of police independence grants the AFP a degree of discretion, this independence falters when actions are perceived to align with government priorities, as evidenced in several high-profile cases (Sydney Morning Herald, 2019). Targeting journalists, whistleblowers, or activists who expose misconduct fundamentally undermines the accountability that is reliant on free expression. This theoretical framework underpins our analysis, demonstrating how politicisation jeopardises the rule of law’s commitment to equality, transparency, and justice.

Case Studies of AFP Misconduct

The 2019 Media Raids: Suppressing Journalism

In June 2019, the AFP conducted raids targeting journalists, sparking widespread concern about the state of press freedom in Australia. The first raid was on the home of journalist Annika Smethurst, prompted by her 2018 article that exposed plans to expand domestic surveillance by the Australian Signals Directorate. The second raid occurred at the Sydney offices of the ABC, related to the Afghan Files, which alleged Australian war crimes in Afghanistan. These raids were conducted under section 79 of the Crimes Act 1914 for the disclosure of classified information and involved invasive searches that lasted several hours.

The raids drew condemnation from various quarters, with the Media, Entertainment and Arts Alliance describing them as an “attack on press freedom.” International media outlets, including the BBC, compared Australia’s actions to those of authoritarian regimes. Critics, such as legal scholar George Williams, have pointed out that the raids were disproportionate, especially given that no immediate security risks were identified. The timing of the raids, following the 2019 election amid a heightened focus on security by the Liberal-National Coalition, raised suspicions of political motives, further reinforced by Prime Minister Scott Morrison’s dismissive response.

While the High Court invalidated Smethurst’s warrant in 2020, the data retained raised significant privacy concerns. Ultimately, no charges were brought against Smethurst or the ABC, yet a survey conducted by the Australia Institute in 2020 revealed that 87% of Australians feared for the future of press freedom. This case exemplifies how national security laws can be wielded to silence journalism, thereby undermining the principle of free expression that is central to the rule of law.

The Witness K Case: Punishing Whistleblowers

The prosecution of Witness K and his lawyer Bernard Collaery, starkly illustrates the AFP’s role in targeting whistleblowers to protect government interests. Witness K, a former officer of the Australian Secret Intelligence Service (ASIS), disclosed Australia’s illegal bugging of East Timor’s cabinet during 2004 treaty negotiations, a clear breach of international law for commercial gain. Collaery provided legal counsel to Witness K, and in 2018, the AFP charged both individuals under section 39 of the Intelligence Services Act 2001 for disclosing classified information, following raids on Collaery’s office.

The case has been shrouded in secrecy, with closed hearings and suppressed evidence, drawing significant criticism from Human Rights Watch for its lack of transparency. The delayed prosecution, occurring years after the initial disclosure in 2013, appeared strategically timed to safeguard diplomatic relations, as noted by Kieran Pender (The Conversation, 2021). Ultimately, Witness K received a suspended sentence in 2021, while Collaery’s charges were dropped in 2022 after significant hardship. This case underscores how vague laws enable politicised enforcement, undermining transparency and accountability, and raises serious questions about the AFP’s independence when acting on government referrals.

Counter-Terrorism and Activist Surveillance

In the wake of the September 11 attacks, counter-terrorism powers have been misused against non-violent activists, framing dissent as a security threat. In 2020, activists from Extinction Rebellion faced surveillance under counter-terrorism frameworks, with The Guardian (2021) revealing that the AFP maintained dossiers on their activities. Indigenous advocates opposing the Adani coal mine also reported being monitored, with the AFP justifying this surveillance under the Critical Infrastructure Protection Act 2018. A report from the Australian National University in 2022 noted that counter-terrorism laws were applied in 30% of environmental protest cases, despite there being no terrorism convictions related to these protests.

This pattern of surveillance chills activism, leading many protesters to self-censor their activities. The AFP’s selective focus – sparing right-wing groups flagged by ASIO (2023) – suggests a bias towards government-aligned interests. Such actions undermine the principle of equal treatment under the rule of law, while the alignment with security rhetoric compromises the AFP’s autonomy, effectively turning dissent into a policing target.

COVID-19 Protest Policing: Overreach and Bias

The AFP’s response to anti-lockdown and vaccine mandate protests in Canberra during 2021 raised significant concerns regarding overreach. The arrests made under public order laws, coupled with the use of facial recognition technology and social media monitoring (as revealed by Freedom of Information requests made by Transcend Australia in 2022), disproportionately targeted demonstrators. Legal scholar Sarah Joseph (Sydney Law Review, 2022) argued that the AFP’s actions reflected undue pressure to uphold government narratives, noting that climate protests faced considerably less scrutiny.

The disproportionate response – characterised by mass arrests with few resulting charges – indicates selective enforcement that chills democratic participation. This case highlights how the invocation of emergency powers can suppress dissent, ultimately undermining the freedoms of assembly and the impartiality of the AFP.

Implications for the Rule of Law and Independence

The cases examined reveal systemic threats to democracy. The targeting of journalists and whistleblowers stifles accountability, deterring the exposure of misconduct and weakening essential checks on power. Criminalising activism narrows the democratic space, discouraging vital debate. Vague laws grant excessive discretion, inviting political influence, as seen in delayed prosecutions and selective surveillance. This erosion of equality and transparency positions the state above scrutiny, leading to a decline in public trust.

Public confidence in the AFP has diminished, with the 2022 Edelman Trust Barometer indicating that 47% of Australians expressed distrust in federal institutions. When the AFP acts as a tool of the government – evident in raids timed with elections or diplomatic needs – it breaches the independence that is essential for its legitimacy. The current reporting structure to the Attorney-General exacerbates these vulnerabilities, as ministerial priorities can heavily influence enforcement actions. Without reform, the AFP risks becoming a politicised enforcer, threatening the very fabric of democratic legitimacy.

Legal Reforms to Restore Impartiality

To address the issues of politicisation within the AFP, four legal reforms are proposed, each assessed for its potential impact and feasibility.

1. Strengthening Oversight

Unchecked discretion within the AFP enables misuse of power. Establishing a Federal Police Oversight Commission (FPOC), akin to the UK’s Independent Office for Police Conduct, could provide a framework for reviewing operations, warrants, and overall conduct. Amending the Australian Federal Police Act 1979 to create the FPOC, which would report directly to Parliament, would align with constitutional powers (section 87). This reform could deter disproportionate actions, such as the Smethurst raid, and address public distrust (65% per 2020 Australia Institute survey). While security concerns and political resistance may pose challenges, the Canadian model of oversight for the Royal Canadian Mounted Police (RCMP) demonstrates viability. Feasibility: Moderate, with advocacy being critical for success.

2. Narrowing Security Laws

Vague laws, such as the Crimes Act 1914 and Intelligence Services Act 2001, facilitate selective enforcement. Amendments that limit offences to harmful disclosures, introduce public interest defences, and require judicial warrants would better protect journalists and whistleblowers. Supported by the precedent set in Lange v ABC (1997), these changes would align with Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Such reforms could prevent cases like Witness K’s, fostering greater transparency, as evidenced by Canada’s Security of Information Act. However, resistance from security agencies and bipartisan political challenges may complicate implementation. Feasibility: Low to moderate, with initial focus on warrant reforms.

3. Enhancing Transparency

Secrecy obscures accountability within the AFP. An AFP Transparency Act mandating public reporting on cases involving media, whistleblowers, and protests, overseen by an independent auditor, would ensure greater scrutiny. Amending the Freedom of Information Act 1982 to support this initiative, as seen in Commonwealth v Fairfax (1980), would enhance transparency. New Zealand’s practice of publishing declassified summaries provides a useful model. Increased transparency would expose potential abuses and help rebuild trust in the AFP, although challenges related to security exemptions and resource allocation remain. Feasibility: Moderate, as this approach is less contentious than broad legal changes.

4. Protecting Dissent

Current counter-terrorism and public order powers have been misused to criminalise activism. A proposed Freedom of Dissent Act that safeguards non-violent protest and whistleblowing, overriding the secrecy provisions of the Criminal Code Act 1995, would align with the principles established in Lange. This legislation could prevent the surveillance of groups like Extinction Rebellion or the arrest of protesters during COVID-19, ensuring the protection of democratic rights. Germany’s Basic Law offers a relevant precedent. However, corporate lobbying and vague definitions of dissent could present risks, alongside a general lack of political will. Feasibility: Low, though there is a greater chance of success for reforms aimed at enhancing whistleblower protections.

Conclusion

The politicisation of the AFP – evident in its targeting of journalists, whistleblowers, activists, and protesters – poses a significant threat to the rule of law and the independence of law enforcement. The cases of the 2019 media raids, the Witness K prosecution, activist surveillance, and the policing of COVID-19 protests reveal systemic misuse driven by vague laws and political influence. These actions suppress dissent, erode public trust, and undermine the foundations of democracy.

Proposed reforms – strengthening oversight, narrowing security laws, enhancing transparency, and protecting dissent – offer a viable path towards restoring impartiality within the AFP. By drawing on global models and advocating for phased implementation, beginning with oversight and transparency, we can counter resistance and work towards a more accountable and independent law enforcement agency. Without decisive action, Australia risks a future in which dissent is silenced, and the AFP serves the interests of power rather than justice, highlighting the urgent need to protect and uphold democratic values.

References

 • McCulloch, J. (2004). Alternative Law Journal.

 • Sydney Morning Herald. (2019). Editorial.

 • The Guardian. (2021). XR Surveillance.

 • The Conversation. (2021). Pender on Witness K.

 • Australia Institute. (2020). Survey.

 • Sydney Law Review. (2022). Joseph.

 • Edelman Trust Barometer. (2022).

 • Law Council of Australia. (2023). Report.

 • Australian National University. (2022). Protest Report.

 • ASIO. (2023). Threat Assessment.