Mal Brough, Slipper's diary and the AFP

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News Corp and 60 Minutes are both reporting AFP investigations into Mal Brough over Slipper's diary, however Ashbygate investigator Ross Jones is doubtful the diary will prove to be Brough's downfall.

ON 22 SEPTEMBER, news.com.au reported:

PRIME Minister Malcolm Turnbull’s new Special Minister of State Mal Brough isn’t free and clear of alleged involvement in the disclosure of the diaries of former Speaker Peter Slipper.

After avoiding questions about his alleged links to Mr Slipper’s diaries on two ABC news programs in the last 24 hours, the Australian Federal Police have confirmed that they are still investigating him.

“The AFP can confirm that it received a referral regarding the alleged unauthorised disclosure of Mr Slipper’s diaries on September 8, 2014 and is investigating this matter. This investigation remains ongoing,” a spokesman for the AFP said.

Following his reinstatement in the cabinet, Brough stunned Ashbygate spectators by belligerently denying to the ABC he had ever asked Ashby to copy Slipper's diary.

Excited by all these developments and having some perfectly good footage from a year ago showing Mal Brough openly admitting to asking Ashby copy the diaries, 60 Minutes last night ran a breathless version the AFP’s confirmation and managed to imply the investigation was triggered by their report. 

It wasn’t.

To illustrate the mastery of their subject, 60 Minutes ran a super showing S70(1) of the Commonwealth Crimes Actwhich states:

A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorised 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.

The thing is, Mal Brough was not a Commonwealth officer when he received the photocopied diary pages — he was chairman of the Fisher Federal Divisional Council, a strictly LNP posting.

Early in its investigations, the Ashbygate Trust commissioned a legal opinion, the gist of which was:

There is no evidence, however, Mr Ashby did not have authorisation to access the diary.

Given his position, it may be expected he would have authorisation to access it. The definition of restricted data may include an electronic diary. However, there is presently no information that conclusively shows that it is restricted data in this particular case. It may be inferred that that was the case but evidence would need to be obtained to prove that element.

There is therefore insufficient evidence at this point to demonstrate that Mr Ashby did not have authorisation and that the information (diary) was ‘restricted data’.

The evidence is sufficient to found an inference that Mal Brough procured or encouraged Mr Ashby to forward him a copy of the diary. That is revealed in electronic communications to and from Mr Brough. However, if it cannot be shown that Mr Ashby was not authorised to access the information, there would appear no offence committed by Mr Brough or Mr Lewis. The accessorial liability, on the information presently available, does not have any prospect of succeeding, especially given the restrictions on the offence in the definition of what constitutes ‘access’.

Further investigation may reveal information regarding the authorisations held by the staff of Mr Slipper. In particular, it would need to be established that Mr Ashby did not have authorisation to access the diary and that the diary constitutes restricted data.

Of course, this is not to say that no offence was committed and that the AFP are not investigating. The AFP has more resources than the Trust and the ability to compel witnesses to provide evidence. They may indeed be able to prove that Ashby did not have authorisation to access the diary and that the diary was restricted data.

Of course, this is only one of several complaints put to the AFP about Brough and Ashby's behaviour and is, one would hope, just one strand of their investigations into this tawdry affair.

However, on the face of it, the current coverage of the AFP investigation into the diary does have the appearance of a beat-up. The tabloid News Corp press have made it perfectly clear they do not like Turnbull. He has destroyed their idol, Abbott, and put serious dampeners on some promising careers of influence.

Irrespective of this, with the Ashbygate book release, in which Mal Brough plays a starring role, along with this continued negative coverage of Brough's involvement in "black ops", the appointment of Mal Brough to a key ministry in the Turnbull cabinet is now looking more reckless than ever.

Ross Jones is the author of 'Ashbygate: the plot to destroy Australia's Speaker', published by Independent Australia and available to the general public from next month.

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