Memo from our lawyers to journos everywhere: Smethurst’s win is a pyrrhic victory for freedom

Smethurst v Commissioner of Police [2020] HCA 14

From Dean Levitan and Dougal Hurley of Minter Ellison.

In June 2019, the Australian Federal Police (AFP) raided News Corp journalist Annika Smethurst’s Canberra home and took material relating to her reporting on secret plans to boost the Australian Signals Directorate’s (ASD) cyber capabilities to include domestic as well as overseas surveillance. 

In a pyrrhic victory for press freedom, the High Court this week unanimously ruled that the AFP search warrant under which this raid was conducted was invalid and should be quashed. 

The High Court’s decision to invalidate the warrant was based on confined grounds. The court held that the warrant misstated the substance of the relevant section of the Crimes Act 1914 (Cth), and that it failed to state, with sufficient precision, the offence to which it related. Media companies cannot expect to rely on similar arguments stemming from overbroad and ambiguous drafting as a matter of course. 

As the court quashed the warrant on drafting grounds, it did not need to consider other questions including the application of the implied freedom of political communication. This is not surprising as courts will often determine disputes on narrow grounds and avoid thorny constitutional questions where possible. 

Smethurst also sought an injunction to secure the return of the seized materials and to prevent their further use by the AFP, including in any future criminal proceedings. By majority (Kiefel CJ, Bell and Keane JJ, Nettle J agreeing), the High court refused to grant that relief and in doing so allowed the AFP to retain the information it seized during the raid. 

On the whole, whilst this decision provides some good news for Ms Smethurst and is embarrassing for the AFP, its effect for media companies is limited and it provides no solace to those facing similar challenges in the future. 

Concerns remain over the powers that enabled the raid in the first instance, the court’s rejection of Smethurst’s request to require the AFP to return her data and destroy any copies, and the lack of positive protections for public interest journalism at Australian law. 

Background

In 2018, Ms Smethurst published stories suggesting that the Department of Defence and the Department of Home Affairs were considering a proposal to expand the powers of the ASD to secretly spy on Australian citizens without a warrant. 

The matter was referred to the AFP and on June 4 2019 officers raided her home. Pursuant to an order issued under the Crimes Act, they demanded and obtained the passcode to unlock access to her mobile phone. They copied information from her phone onto a USB which was removed from the premises. 

The central issue in Smethurst would be the validity of the warrant which authorised this action, and therefore whether the search conducted of her premises was authorised by law. The question would then arise as to the consequences of invalidity and more particularly what should be done with the information held by the AFP. 

Another raid, on the ABC’s Sydney headquarters, was carried out the following day. The story which prompted the ABC raid involved allegations of unlawful killings by Australian Special Forces soldiers in Afghanistan. 

Both the Smethurst and ABC raids were reported internationally and have called into question Australia’s secrecy laws, which are among the most onerous among comparable Western democracies. 

In February 2020, in the ABC case, Justice Abraham of the Federal Court rejected all of the ABC’s grounds for challenging the search warrant under which that raid was conducted, stating that the ABC’s submission “elevates source protection to a position which, on the current state of the law, it does not have”.

This decision laid bare the parlous state of legal protections for journalists’ confidential sources in Australia, but was not altogether unexpected. The ABC announced that it would not appeal and attention turned to Smethurst. 

Unlike the ABC case, Smethurst went straight to the High Court. This was allowed as Ms Smethurst brought her challenge under the court’s original jurisdiction which allows some cases to come directly to the High Court without any prior judicial decision. 

Decision on the search warrant

The primary questions for the High Court were: 

1. Whether the warrant misstates the substance of the relevant section of the Crimes Act as it then was. Importantly, the criminal offence which supported the search warrant was a provision which had rarely been used in the past and has since been repealed
   
2. Whether the warrant states the offence to which it relates with sufficient precision, and
   
3. Whether the relevant section of the Crimes Act was invalid on the ground that it infringed the implied freedom of political communication that exists under the Constitution. The implied freedom is not a personal right and exists to support our system of representative government for which the Constitution provides.
   

On the first two questions, the court held in favour of Ms Smethurst, with the judges largely in agreement. The plurality (Kiefel CJ, Bell and Keane JJ) emphasised the court’s “insistence on strict compliance with the statutory conditions for a warrant” (at [paragraph] 25). 

The ambiguities and defects in the warrant are covered in detail by the plurality at 30-44.

At 33, the plurality noted that the warrant “not only fails to identify any offence arising under [the relevant provision of the Crimes Act], it substantially misstates the nature of an offence arising under it”. The plurality provided useful guiding statements at 27-28: 

27: The protective purpose to which these provisions are directed is achieved by ensuring that each of the issuing officer, the officer executing the warrant and the persons affected by the warrant understand what is the object of the search and the limits to it. The issuing officer obviously needs to appreciate the boundaries of the authorisation which is to be given. The executing officer and those affected by the warrant must likewise understand the object of the search and comprehend the limits to the scope of the search which has been authorised. In each case this can only be achieved by the nature of the offence the object of the warrant being stated on the face of the warrant, in a way which is both intelligible and sufficient to convey what those concerned with or affected by the warrant need to understand. 

28: It is not necessary that the warrant state the offence with the same precision and specificity as is required for an indictment. The purpose of a warrant is not to define the issues for trial. The power to issue a search warrant is given in aid of criminal investigation as well as finding evidence which will be admissible at trial. What emerges from the cases is a test of sufficiency to indicate the areas of the search. The test of sufficiency with respect to the statement of offence reflects the purpose of the condition, that persons executing and affected by the warrant understand what is being sought. If the object of the search is not identified the warrant becomes a general warrant. 

Further, at 42 they noted: 

It may be accepted that regard may be had to other parts of the warrant … But it remains necessary that what is thereby conveyed to the ordinary reader be sufficiently specific to identify the nature of the particular offence. As Hely J said in Williams v Keelty, the requirement that the offence to which the warrant relates be stated in the warrant is not satisfied by the provision of information falling short of such a statement but which might enable a person reading the warrant to deduce or infer what offence is intended. Nothing meaningful is conveyed about the particular offence which was intended as the object of the [warrant]. 

Having decided the first two questions based on errors on the face of the document, none of the seven High Court judges that ruled on the matter thought it necessary to answer the third question on infringement of the implied freedom of political communication. 

Constitutional lawyers had keenly anticipated a decision on this question as it would have represented the first major opportunity for the High Court to expound upon the relationship between press freedom, national security and the doctrine of political communication. Professor Adrienne Stone of the University of Melbourne had previously said that “if the High Court upholds a reading of the relevant section that really means the government can suppress any information it wants to, then we would be in a position that this doctrine is doing very little to uphold our democracy”. 

Those that had expressed hope or concern for what the court may decide on the doctrine of political communication will need to wait for another case in which the issue may arise. This may not occur anytime soon as the court has been loath to hear appeals where the implied freedom is pleaded in media cases for many years. 

Decision on appropriate relief for Ms Smethurst

As the warrant was invalid, a secondary dispute arose about whether an injunction should be issued requiring the return to Ms Smethurst of the information obtained by the Australian Federal Police. 

The court had to decide whether it had the power to grant an order to reverse the consequences of a trespass on Ms Smethurst and return what was taken from her under the invalid warrant. 

A majority of four justices (Kiefel CJ, Bell and Keane JJ, with Nettle J agreeing) declined to grant the injunction, noting Ms Smethurst’s lawyers’ inability to identify a sufficient right or interest that required protection. They also highlighted discretionary considerations that would have led to a denial of an injunction in any case. At 99 they noted: 

Even if the plaintiffs had been able clearly to identify a juridical basis for the injunctive relief sought, strong discretionary considerations, based on the policy of the law, would deny a grant. It has long been accepted that the courts will refuse to exercise their discretion to grant equitable relief when to do so would prevent the disclosure of criminality which it would, in all circumstances, be in the public interest to reveal. 

In other words, as Ms Smethurst was still under investigation (N.B. at the time of writing, she is still yet to be charged with an offence) she was not entitled to equitable relief, which is based on the idea of fairness. The AFP would be allowed to keep the private property it seized unlawfully. 

Gageler, Gordon, and Edelman JJ each dissented, noting that they would have granted an injunction, but for different reasons. 

Gordon and Gageler JJ agreed that section 75(v) of the Constitution provided a remedy. 

Gageler J highlighted a leading case in United Kingdom constitutional law establishing civil liberties and limiting executive power, noting at 126 that: 

The principles of constitutional liberty and security carried forward from Entick v Carrington are part of our common law inheritance. We ignore them – or, worse, devalue them – at our peril. 

Gordon J noted at 165 that: 

The law would take a seriously wrong turn if this Court held that it could not grant an injunction to restore a plaintiff, so far as possible, to the position they would have been in had power not been exceeded without the plaintiff demonstrating that, in addition to the excess of power, a private right is also breached by retaining what was seized. To require demonstration of some further or additional private law wrong as the only basis on which injunction may go treats the excess of power as irrelevant and ignores the constitutional purpose of s 75(v) of the Constitution. 

Her Honour added at 169 that: 

Officers of the Commonwealth are subject to the law and must obey the law. Thus, there need to be effective remedies when they exceed their powers. And those remedies must be effective whether or not an individual has some separate private law claim giving rise to other remedies, remedies different in character and purpose from those available when an officer of the Commonwealth acts in excess of power. 

Edelman J would have granted the injunction, only on equitable grounds. At 262 his Honour provided that: 

… independently of any development of the law concerning private information, Ms Smethurst does have an interest in resisting the potential dissemination of private information contained on her mobile phone which has not been lawfully obtained. In an appropriate case, the strength of that interest will establish that damages are inadequate. The question is whether this case is such an appropriate case. I have not found this question easy. The reasons of Nettle J concerning the limited use to which the Australian Federal Police are likely to put the information in the performance of their functions present a powerful case for a conclusion that damages would be adequate. Ultimately, however, I have concluded that Ms Smethurst’s interest in privacy is sufficient to establish that damages would not be adequate. 

Implications

This decision sends an indisputable message that the raid on Ms Smethurst was illegal, but should concern journalists, whistle-blowers and ordinary Australians alike. 

The chances of Ms Smethurst being charged now would appear to be greatly diminished. However, despite the unlawful warrant, the evidence could still be used in prosecution. Use of the evidence would, however, be open to legal challenge based on the High Court’s finding that the warrant was invalid. Attorney-General Christian Porter has previously intimated that he would be “seriously disinclined” to authorise charges against journalists but neither he nor the AFP have ruled out prosecution of Smethurst. 

More broadly, this decision does not, nor could it be expected to rectify the fundamental lack of protection available to journalists and their confidential sources under Australian law. 

Australia has never had an express personal constitutional protection of free speech like the First Amendment to the United States Constitution and a radical expansion of the doctrine of political communication is unlikely. 

The raids and their legal challenges have undoubtedly embarrassed the AFP and the Federal Government, but there is nothing to stop the same thing occurring again in similar circumstances, only with a more carefully drafted warrant. 

Whistle-blowers who contact journalists will still be reluctant to come forward, as the raids cases demonstrate how journalists may be forced to give up the identity of sources who have provided information on the promise of anonymity. 

This is a problem for the legislature, not the courts and reasonable reforms are long overdue. 

The slew of national security laws that Australia has enacted since September 11 2001 needs to be comprehensively reviewed and reformed to strike a fairer balance between national security and the public’s right to know. 

Australia has also not followed other Five Eyes intelligence service partners in providing explicit protections for journalists in the exercise of search warrants by police. 

Reforms specific to the warrant process should, at a minimum: 

• Mandate that the issuing officer of a warrant must be a judge of a superior court of record
  
• Require such a judge to consider a statutory public interest test, and
  
• Adopt a Public Interest Advocate model similar to those already operating in Queensland, Victoria and Canada, including annual reporting requirements to aid transparency and accountability. There is no harm in the public knowing, for instance, how many warrant applications were made and by which organisations, and how many of those applications were approved and refused.
  

It is demonstrably possible for legislation to require a search warrant to be issued by a judge of a superior court and to allow the media to contest the disclosure of documents obtained during a search without unduly hampering the important work of our law enforcement and intelligence agencies. 

Warrant schemes in Canada, New Zealand, and the United States all provide examples of various practices which could be transplanted into Australia. These schemes have been raised in submissions to our own Parliamentary Joint Committee on Intelligence and Security. 

Smethurst is yet another decision that highlights the troubling state of press freedom in a country increasingly blanketed by secrecy. Urgent reforms must strike a fairer balance between protecting national security, civil liberties and the public interest in keeping governments honest.