Court unanimously confirms invalid search warrant for Smethurst, however, did not order the AFP to destroy materials in 4:3 decision.
Quashed warrant in a unanimous judgment
A News Corporation journalist, Annika Smethurst, has had what her fellow journalists have deemed a “pyrrhic victory”. This characterization is of the mixed results in her High Court Case judgment delivered yesterday. Smethurst’s legal team challenged the legality of the Australian Federal Police (AFP) raiding her Canberra home on 4 June 2019. They were attempting to seize documents related to her findings on intelligence matters. Arguably, this raid can be critiqued as a chilling effect on behalf of the Australian Government’s increasing plans to expand draconian powers for its covert surveillance measures upon Australians.
The High Court held unanimously by all seven Judges (Chief Justice Kieffel, Justices Bell, Gageler, Keane, Nettle, Gordon and Edelman) that the search warrant relied upon by the AFP was invalid. This was on the grounds that it misstated the substance of the “official secrets” provision of s 79 (3) of the Crimes Act and failed to state the offence to which the warrant related with “sufficient precision.” Across a 115 page judgment, there was no doubt held by each of the seven Judges, that the AFP had erroneously used a vague search warrant resulting in a blatant trespass to Smethurst’s land.
Victory or chilling concerns for civil liberty? Judges divided over return of USB materials
The court then ordered that the warrant be quashed on the basis of such lack of ‘precision’. However, most notably was that only a minority of judges argued the AFP should hand over a USB stick of files which police copied from Smethurst’s phone, and subsequently deleted.
As a result, Justice Nettle joined the lead majority (Chief Justice Kiefel, Justice Bell and Keane) in declining to grant the injunctive relief sought by Smethurst’s lawyers, seeking the deletion of the materials obtained. This raises a distinct concern about recourse available to members of the public who, like Smethurst, can be embroiled in a legal tug of war against the monolith of police powers and the infringement upon their freedom of political expression. In defence of declining to grant injunctive relief, Justice Edelman said :
“All of the plaintiffs’ eggs were ultimately placed in the basket of trespass to goods. Unfortunately, there was little focus upon why the protection of Ms Smethurst’s property rights should permit an injunction to reverse the consequence of any infringement of those rights…the parties made few submissions concerning whether, and why, the protection of a right to non-interference with property permits an order requiring reversal of the consequences of the trespass. By focusing upon the wrong, the parties took their eyes off the right.”
Annika Smethurst vulnerable to future prosecution based on files AFP have retained
In light of where the High Court majority viewed the plaintiff’s “eggs” were all placed, this now presents Smethurst with the ever-present conundrum that she may continue to face potential future prosecutions by the AFP as a result of files still held in their possession. Justice Gageler (joined by Justice Gordon and Edelman) argued against the majority at  stating:
“unauthorised entry into her home was a trespass to her land…the handling of her mobile phone there, including the unauthorised operation of electronic equipment to access data on her mobile phone, was a trespass to her goods.”
Are we heading towards a Big Brother state?
It is arguable, that this split decision in declining to order the return of USB materials is leading to a “Big Brother” like state in NSW and across broader Australia. The case of Smethurst was an opportunity for the Court to protect the freedom of political expression. However, this Judgment fell short of making any defence of it.
This Judgment will now fundamentally echo as a firm precedent within the legal arena concerning the ongoing scope and depth of police powers, the tort of trespass to goods and how “sufficient precision” is emphasised as necessary for a warrant to be considered valid. This recent judgment continues to uphold the balancing act of public and private interests which continues to rest on a knife’s edge, now ever tilting against civil liberties. Interestingly, the majority (Chief Justice Kiefel, Justice Bell and Justice Keane) came close to commenting on this balance, yet fell shy of directly addressing the freedom of speech question:
“It may be accepted that the balance struck by the legislature to a greater extent, favours the public interest in the investigation and prosecution of crimes. Nevertheless it remains a concern of the legislature, in enacting provisions authorising warrants for search and seizure, to provide a measure of protection to persons affected by a warrant.”
“Australians should be extremely concerned that a journalist’s home can be raided illegally”
However,it is not clear how exactly this ‘concern’ to persons affected by a warrant is getting a remedy from the High Court, in light of the majority decision to decline Ms Smethurst a return of her property.
Subsequently, in a response to the judgment delivered, chairman Michael Miller delivered a statement on behalf of News Corporation that, “All Australians should be extremely concerned that a journalist’s home can be raided illegally.”
Finally, as legal practitioners, it is also a deep concern for our “clients”. These are in fact everyday people across all walks of race, class and life who step into law firm offices across the state, seeking legal sanctuary, protection and advice against the very law itself.