In Smethurst & Anor v Commissioner of Police & Anor  HCA 14 (15 April 2020), the High Court of Australia has handed down a decision finding that the search warrant relied upon by officers of the Australian Federal Police (“the AFP”) to search the residence of News Corp journalist Annika Smethurst (the first plaintiff) was found to have been invalid.
The Court's decision is a, since the Court, while finding the search warrant invalid, did allow the AFP to retain the material seized, exposing the reporter and her source to possible future prosecution.
On 29 April 2018, the Nationwide News Pty Ltd (the second plaintiff), published articles authored by Ms Smethurst in the Sunday Telegraph, and on its website. Ms Smethurst wrote the articles on plans to expand the powers of the Australian Signals Directorate (“ASD”). The story included images of a document created by the ASD marked “secret” and “top secret”, leading the AFP to argue Ms Smethurst and the Sunday Telegraph had broken the law by publishing them. On 4 June 2019, in the course of an investigation it was conducting in relation to those articles, the AFP searched Ms Smethurst's residence.
According to the High Court's official judgement summary:
The AFP purported to rely upon a warrant issued on 3 June 2019, which in turn relied upon there being "reasonable grounds for suspecting" that the things mentioned in it would afford evidence as to the commission of a Commonwealth indictable offence. Particularly, the warrant stated that Ms Smethurst and the Sunday Telegraph "… communicated a document or article to a person, that was not in the interest of the Commonwealth, and permitted that person to have access to the document, contrary to section 79(3) of the Crimes Act 1914, Official Secrets".
In the course of the search, the AFP copied data from Ms Smethurst's mobile phone. The AFP also identified a number of documents that they believe fell within the therms of the warrant, and these were copied onto a USB stick belonging to the AFP, and then deleted from the laptop. Ms Smethurst's phone was returned to her and the USB stick was taken by the AFP.
Consequently, Ms Smethurst and Nationwide News commenced proceedings in the original jurisdiction of the High Court. They sought to have the warrant quashed, and to obtain a mandatory injunction requiring the delivery up or destruction of the material copied from Ms Smethurst's mobile phone.
The HCA unanimously held that the warrant relied upon by the AFP was invalid on the ground that it “misstated the substance of s 79(3) of the Crimes Act”, as it stood on 29 April 2018. Edelman J said at [para 202] of the judgment:
According to the judgment summary:
"The entry, search and seizure which occurred on 4 June 2019 were unlawful. Having made this finding, it was not necessary for the Court to consider whether the warrant was invalid on the ground that s 79(3) of the Crimes Act (as it stood on 29 April 2018), infringed the implied freedom of political communication. Nor was it necessary to consider the validity of the order that had been made under s 3LA of the Crimes Act requiring Ms Smethurst to give assistance to enable a constable to access, copy or convert data on a computer or data storage device."
The AFP were ordered to pay the costs of Ms Smethurst and News Corp.
Lawyers for the plantiffs argued the court should issue an injunction requiring the AFP to hand back the seized materials or destroy any copies. The HCA was unanimous in quashing the warrant, but was divided over what should happen to the material seized.
While three judges said they thought the material should not be kept by police, the majority of the court declined to make an order, meaning police could keep the material for any future possible prosecution related to the case.
Justice Gageler also proposed [at para 127], police hand back the USB to rectify the “… unauthorised invasion of a common law right to property … ”, accepting Smethurst’s lawyers submission that damages would not remedy the wrong.
Speaking to, Attorney-General Christian Porter said any decision on prosecuting journalists will need to be signed off by him, while a spokesperson for the AFP said it was considering the decision and would "act in accordance with the ruling".
Executive Chairman of News Corp,said the case highlighted the need for news organisations to be allowed to challenge warrants against journalists:
Marcus Strom, Federal President of the journalists' union, the Media Entertainment and Arts Alliance (MEAA) said in a:
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Smethurst & Anor v Commissioner of Police & Anor  HCA 14 (15 April 2020) and judgment summary
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