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Exclusive: Journalists covering the Australian government’s asylum seeker policies are repeatedly reported to federal police in bid to uncover sources

• Read the referral documents 

• Comment: Journalism is not a crime, so why are reporters being referred to police?

Journalists reporting on the federal government’s asylum-seeker policies have been repeatedly referred to the police in attempts to uncover confidential sources and whistleblowers, a Guardian Australia investigation can reveal.

Over the past 12 months federal government agencies have referred stories by journalists from Guardian Australia, news.com.au and the West Australian to the Australian federal police (AFP) for their reporting on the government’s asylum seeker operations during the time Scott Morrison was immigration minister.

Almost every referral made to the AFP by federal government agencies “for unauthorised disclosure of commonwealth information” since the Coalition took office in September 2013 has been directly related to immigration reporting by journalists. 

At least eight referrals to the police were made on the subject of asylum seeker stories, and active police investigations continue into a number of the referrals. One referral related to a non-immigration matter was made by the integrity commissioner.

West Australian journalist Nick Butterly was referred twice – once in February 2014 for a story about people smugglers struggling to fill boatsand once in May 2014 for a report on an intercepted asylum seeker vessel– by the head of the Australian Customs and Border Protection Services, Michael Pezzullo. 

“On review of the article, it appears that several of the claims may have drawn upon classified information. This suspected disclosure of this classified information relates specifically to operational and assessment activity that is not available through open sources or authorised media releases,” Pezzullo wrote in one letter sent in February 2014, obtained by Guardian Australia. 

“I would be grateful if your agency would accept the responsibility for investigating this matter with a view to identification and, if appropriate, prosecution of the persons responsible.”

Guardian Australia’s report that an Australian customs vessel entered much deeper into Indonesian waters than previously disclosed was also the subject of a referral by Pezzullo. A police investigation is still active.

“The AFP can confirm it has received a referral in relation to this matter from the Australian Customs and Border Protection Service,” a spokesman said.

“The investigation is ongoing and while this process is occurring, the AFP will not be providing further comment.”

In a third referral, on 9 December 2013, the defence department referred to the AFP a news.com.au article by Ian McPhedran about an Australian patrol boat sinking an asylum seeker boat after it was towed from Christmas Island. 

“This incident constitutes a potential breach of operational security and potentially the commission of a criminal offence under the commonwealth Crimes Act,” an officer from the defence security authority wrote.

There have been several other referrals by the immigration department and customs – with some investigations still active – but both agencies have refused to release further details about the nature of those investigations.

Guardian Australia understands that one of the other reports referred to the AFP by Pezzullo concerned the vessel holding 157 asylum seekers that was diverted to the Cocos islands in July. An AFP spokeswoman would not confirm the referral concerned that report, saying it would not be appropriate to comment on an “ongoing investigation”. 

A spokeswoman from the Department of Immigration and Border Protection said: “Any unauthorised disclosure of information is an offence, the portfolio will continue to refer any matters to relevant agencies for consideration and investigation.”

The details of the referrals have emerged from freedom of information requests to customs and the AFP, and separate investigations by Guardian Australia.

The requests sought from immigration, customs, the AFP and defence every instance in which the federal police were asked to investigate unauthorised disclosures of information under the Crimes Act. 

This is the section used to prosecute whistleblowers and leaks by federal government employees and private contractors.

The Australian Law Reform Commission (ALRC) has previously recommended this offence be wound back because it had “real concerns” that “disclosure of any information regardless of its nature of sensitivity” could be caught by the offence. 

The chief executive officer of the Media, Entertainment and Arts Alliance, Paul Murphy, told Guardian Australia the attempts to prosecute sources undermined legitimate reporting.

“What we see in these disclosures is a brutal, heavy-handed response by government agencies to legitimate news stories,” he said. “The aim is to punish and silence those who inform the wider community of what is being done in their name. It aims to capture legitimate reporting by journalists and media organisations of activities in the public interest.

“Rather than moving in line with recommendations we’ve made or the ALRC made, the disturbing thing is that the government is moving in the opposite direction to further criminalise public interest disclosures.”