Today the High Court unanimously found the AFP warrant to enter journalist Annika Smethurst’s home in search of information relating to the publication of classified information, was invalid on a technical ground:
“that it misstated the substance of s 79(3) of the Crimes Act, as it stood on 29 April 2018, and failed to state the offence to which the warrant related with sufficient precision. The entry, search and seizure which occurred on 4 June 2019 were therefore unlawful”
Costs were also awarded to the plaintiffs.
NSWCCL welcomes this limited victory for Annika Smethurst today - but we remain deeply concerned that freedom of the press and effective investigative journalism continues to be under serious threat in Australia. This decision does nothing to alleviate those concerns.
The unprecedented raids on both Smethurst and the ABC offices occurred in the context of widespread community concern about the proliferation of draconian secrecy laws and the impact of these laws on the free press and investigative journalism in Australia - especially in relation to reporting on national security matters.
The motive for the raids was clearly to warn off journalists and whistle-blowers. The publications posed no threat to national security and the revelation of the information was in the public interest.
The High Court finding that the warrant lacked ‘sufficient precision’ identifies an apparent lack of competence in the AFP’s drafting, but has no wider implications for any protections for investigative journalism or freedom of the press in Australia.
The AFP -with the agreement of the Minister – is still able to press charges against Annika Smethurst.
Divided HC views on return of the unlawfully seized information
Surprisingly - even though the “entry, search and seizure” were declared unlawful – a majority of the High Court Justices refused the plaintiff’s application for the return of the information copied from the journalist’s mobile phone onto a USB stick.
This was a particularly disappointing majority (4-3) decision.
A key agenda for the raids was the identification of the journalist’s sources which this information is likely to enable.
Whistle-blowers underpin much investigative journalism. If journalists are no longer able to guarantee their informant’s anonymity, investigative journalism and an effective free press will be greatly weakened.
The minority views of the three dissenting Justices (Gageler, Gordon and Edelman) on this issue provide a more positive perspective.
Justice Gordon was of the view that:
165 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.
Justice Gageler took a similar position:
117…I do not share their Honours' doubts as to the existence of a juridical basis for the final mandatory injunction which Ms Smethurst seeks, requiring the AFP to deliver up the USB drive on which the copied data is stored to enable that data to be deleted. And I disagree with their Honours' view that such an injunction should be refused in the exercise of discretion.
122 For so long as the information remains in the hands of the AFP, the direct effects of the infringement of her rights to possession of her home and of her mobile phone are serious and ongoing. There being no suggestion that the value of the information embedded in the data to her is wholly commercial, money alone cannot restore her to the position she would have been in had the trespasses not been committed.
All three Justices ordered the return of the USB drive to Annika so the data could be deleted. Gordon and Edelman also required the AFP to delete any copies. Gageler was silent on this but flagged the obvious fact that nothing stopped the AFP from seeking a new and valid warrant for the information.
Legal and constitutional implications
The one application by the plaintiffs which may have had significant legal and constitutional implications was that:
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.
This matter was not addressed by the High Court as it was not necessary given their decision that the warrant was invalid on technical reasons.
Therefore the huge issue relating to the encroachment of draconian secrecy laws on the freedom of the media in Australia will have to wait the outcomes of the pending report of the Parliamentary Joint Committee on Intelligence and Security on this broad issue.
This now very overdue PJCIS report will be very significant and carries a weight of expectation that it is not likely to be able to meet given the constraints of its terms of reference.
In our view, the only effective remedy for the current immense constraint on the media’s capacity to deliver quality investigative journalism and to provide the reporting the community needs to hold governments accountable is a major rollback of Australia’s excessive secrecy laws and a strong human rights charter which includes an effective right of the media to freedom of expression.
Media coverage: Sydney Criminal Lawyers
Except for those brief moments when it has been chided during the COVID-19 crisis – think Bondi Beach – the Australian public has done extremely well in completely changing the way it goes about its everyday life, with the implementation of lockdown measures.
And in amongst the rollout of prohibitions, penalties, and stimulus packages, the Morrison government saw fit to close down federal parliament for months on end. This was sold to the public as a necessary safety measure, at the same time government was recommending schools stay open.
However, as the initial pandemic shock began to clear, the opposition, judicial officers and civil liberties advocates began to question whether the removal of parliamentary oversight at the time of an unprecedented health crisis was really the correct avenue to take.
The NSW Council for Civil Liberties was calling for the launch of the senate committee in order to maintain at least some democratic process during the crisis. And the council has been keeping its usual keen watch over developments affecting the freedoms of Australian citizens.
Sydney Criminal Lawyers spoke to NSWCCL president Nicholas Cowdery about the need to increase parliamentary scrutiny during a crisis, rather than eradicate it, as well as the issues around the gaping holes in the emergency provisions that are leading to the ambiguities in their enforcement.
Resources for those in mandatory quarantine
As many of those who have been in mandatory quarantine are coming to the end of their periods of isolation, many in city hotels, there are others returning from overseas and entering mandatory quarantine. NSW Health describes mandatory detention as an “inconvenience”. It is more than that. Yet, those corresponding with NSWCCL have not complained about the fact of having to be quarantined. They did not mind being inconvenienced. They had other concerns about it.
Policy about quarantine was announced without sufficient time and briefing and understanding by those who were required to provide and enforce it. It has been unnecessary for those quarantined to be the subject of arbitrary and, often, meaningless rules, seemingly made on the run, uncertain and inconsistently applied. If the government expects voluntary compliance with its policies, those policies have to be perceived as fair.
The NSW Government says that it is “determined to make the 14-day period as comfortable as possible”. However, many are not being treated respectfully and with consideration and compassion. Many have no ability to have access to fresh air and daily exercise, appropriate meals and cleaning supplies. Special dietary requirements are not being met and physical and mental health needs are not being addressed appropriately. In some cases, packages are not allowed to be delivered by family and friends or arbitrary limits are placed on what they may contain. Others complain that there is no easy access to medical services or other simple requirements that have no bearing on one’s ability to be quarantined.
If you have any issues:
- Ensure that you take advantage of the facilities that you are entitled to according to the NSW Health page on quarantine. There are a number of resources listed in that website. https://www.health.nsw.gov.au/Infectious/factsheets/Pages/hotel-quarantine.aspx
The website states that “Each hotel is being staffed with experienced doctors, nurses and mental health professionals. Every day travellers will have access to:
- registered nurses
- assistant nurses
- a general practitioner (doctor) will do a daily round of the hotel
- medical practitioners are on-call 24/7 with the same doctor for continuity.”
- Contact your local Federal and State Members of Parliament and make them aware of your situation.
- Contact the Attorney General, Health Minister and the Police Minister in the State or Territory in which you are quarantined.
- Publicise your complaint to Australian media outlets.
- Report your complaint to websites, such as https://covidpolicing.org.au/.
Media coverage: Straits Times/Sunday Times
The NSW Council for Civil Liberties has called on police to be more restrained regarding COVID-19 restrictions. "There is widespread community observance of the laws," said a spokesman for the council, Mr Stephen Blanks.
"If the police are seen to be enforcing them in a heavy-handed way, it will result in a loss of community support," he added.
Australian police have come under criticism for being too heavy-handed in enforcing social distancing rules after officers targeted mothers with babies and individuals sitting alone in parks.
Despite the rules being quickly and readily accepted by most Australians, there are concerns that the overzealous approach by some officers risk jeopardising community support for the measures.
More than 200 not-for-profit and community organisations have backed a major report calling on the Australian Government to strengthen its commitment to human rights in its laws, policies and practices.
The report has been prepared ahead of a United Nations Human Rights Council review of Australia in a process known as the Universal Periodic Review, which each member of the UN must undergo every four years.
Edwina MacDonald, a Legal Director at the Human Rights Law Centre and one of the report coordinators, said it offers a comprehensive insight into the state of human rights in Australia, at a crucial time with the COVID-19 crisis set to exacerbate existing inequalities and create a host of new human rights challenges.
“The human rights that many Australians have taken for granted are suddenly front and centre in public consciousness – essential rights like healthcare and education are coming under enormous strain and structural economic inequalities will hit disadvantaged communities hard. This report provides a snapshot of the existing problems and is a stark reminder that Australians will not face this pandemic on equal footings,” said MacDonald.
Australia’s Universal Periodic Review by the UN Human Rights Council will take place early 2021. The NGO Report was coordinated by the Human Rights Law Centre, the Kingsford Legal Centre and the Caxton Legal Centre, working with an Advisory Group comprised of 16 NGOs, and authors from 57 NGOs.
The NSW Council for Civil Liberties welcomes the unanimous decision by the Senate to establish a Select Committee on COVID -19 matters.
The Committee has a wide scope. It is empowered “to inquire into and report on:
- a) the Australian Government's response to the COVID-19 pandemic; and
- b) any related matters.”
It has strong powers to gain information, hold public or private hearings, publish evidence, findings and recommendations and a direction that it be “provided with all necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the committee with the approval of the President”.
It will have a core membership of 7 being: 3 nominated by the Leader of the Opposition in the Senate; 2 nominated by the Leader of the Government in the Senate; 1 nominated by the Leader of the Australian Greens; and Senator Jacqui Lambie. Other Senators will be able to be nominated as participating – but not voting - members.
On the face of it, this new Select Committee should be able to make a significant contribution to democracy in oversighting the Government’s responses to the COVID -19 pandemic. In so doing it will hopefully provide some much-needed scrutiny of Government decisions and their implementation to fill an astonishing accountability vacuum created by the closure of the Australian Parliament until 11 August 2020.
The Government’s continued refusal to amend the Parliament’s sitting schedule to provide for sittings over the intervening months is a betrayal of the people’s rights to transparency and accountability in government.
Previous statement: 6 April 2020, Call for senate committee scrutiny of government responses to COVID-19
Previous statement: 30 March 2020, Statement: COVID-19 and Government oversight - Prolonged Parliamentary Adjournment unacceptable and Dangerous for Democracy
Media coverage: The Canberra Times
The NSW Council of Civil Liberties has called for the state's chief medical officer to be consulted about fines issued under extraordinary laws designed to prevent the spread of COVID-19.
It follows concern that police may be issuing infringement notices to people who do not pose a risk of spreading the virus.
NSWCCL spokesman Stephen Blanks disputed whether going for a drive should be classified as an offence. "That activity has negligible community risk, of course there could be a risk if there was an accident, but it's very remote," he said.
"The experience of the past week suggests the commissioner should be getting some guidance from the chief medical officer of NSW as to whether particular activities involve community health risk."
Mr Blanks warned maintaining community support for the laws would be essential in the weeks and months ahead.
"It's unprecedented, the idea that everyone is confined to their homes unless they have a reasonable excuse to leave. The fact is there is widespread community observance of the laws, but the most important thing is the community support for them is maintained," he said.
"If the police are seen to be enforcing them in a heavy-handed way it will result in a loss of community support and will be counter-productive."
NSWCCL is engaging with the fast moving covid-19 crisis on a number of fronts. The maintenance of core democratic processes to ensure adequate parliamentary scrutiny of the government’s responses to the crisis is a high priority for us and other civil society organisations. Our intention is not to hinder the Government’s capacity to act with necessary speed in the face of the unprecedented challenges of the pandemic. Rather, our aim is to give confidence to the community that government responses are being scrutinised for lawfulness, proportionality and fairness through transparent parliamentary processes. Without this confidence public trust in the Government over this period is likely to be weakened.
Like many others, we have urged both the NSW and the Australian Governments to rethink their decisions to close down their parliaments over the next crucial months. The NSW Parliament is not scheduled to resume until 15th September and the Australian Parliament not until 11th August. The Australian Parliament will sit for one day next Wednesday (8th April) to approve the latest tranche of emergency spending.
We have also called for the establishment of a strong, bipartisan Senate Select Committee to scrutinise and report on the Government’s responses to the pandemic crisis. NSWCCL joined 7 other legal and civil society groups in a public call for such a committee to approved when the Parliament sits on Wednesday:
The Senate must establish the Select Senate Committee when it reconvenes, for potentially just one day, next Wednesday. A Select Senate Committee will provide a vital avenue to business, civil society groups and individuals to provide information to inform Government decision-making and feedback on the impact of those decisions, so that no one is left behind and no one is left in the dark.
The NSW and New Zealand Governments have already established committees to oversee their Governments’ response to COVID-19.
A Select Senate Committee is just a part of the solution – Australians also need regular parliamentary processes to continue. It is vital that our Parliament sit, in a way that is safe, so it can make decisions rapidly as the pandemic unfolds.
Participating groups in addition to NSWCCL were Human Rights Law Centre, Centre for Public Integrity, Amnesty International, National Aboriginal and Torres Strait Islander Legal Services, People with Disability Australia, GRATA Fund and the Public Interest Advocacy Centre.
Other groups – including eminent ex judges - have made similar calls for such a committee.
At this point of time we are hopeful that the Senate will set up such a Committee next Wednesday to provide the much-needed and focused scrutiny on Government actions over this extraordinarily challenging and scary period in Australia’s history.
Statements from NSWCCL on COVID-19 responses, links to up-to-date information and resources
For NSWCCL in the media visit THIS PAGE.
NSWCCL Statements on COVID-19
The right to protest should not be curtailed - statement re car convoy protesting COVID-19 risks to refugees held in detention
Actions and campaigns
NSWCCL recently signed on to support the #GameOver campaign by Craig Foster to get those held in offshore detention to safety, and endorsed the 'Open letter to Australian governments on COVID-19 and the criminal justice system’
National Coronavirus Helpline - Call this line if you are seeking information on coronavirus. The line operates 24 hours a day, seven days a week - 1800 020 080
Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 - Signed 10:20pm 30th March
Law Access NSW LawAccess NSW is available on 1300 888 529 between 9am to 5pm, Monday to Friday to help with legal issues including those arising from the COVID-19 pandemic.
Policing COVID in Australia - Have you been stopped by police or had any interaction with police since the new public health rules were introduced in your area? Do you feel you have been treated unfairly? Do you know of an incident that concerns you? Visit the Policing COVID website.
Australian Women Against Violence Alliance - COVID-19 resources for a range of at-risk and minority communities
Australia at Home - A resource to bring together people from across Australian civil society. Hosting lunchtime briefings and online series of conversations with some of Australia’s most experienced and interesting thinkers.
Aboriginal Legal Service NSW ACT Free Our People - Petition: Stop COVID Aboriginal Deaths in Custody before it's too late
Asylum Seeker Resource Centre - Petition to protect people seeking asylum and refugees in COVID-19 crisis
NSWCCL supporter and esteemed retired physician, Dr Alex Wodak*, has called for the Commonwealth Government to immediately close all immigration detention centres and remove all non-violent inmates from prisons across the country or risk a major public health crisis of COVID-19.
"An outbreak of COVID-19 is many, many more times likely in a detention centre or prison than in the general population."
"You have overcrowding, outdated facilities, lack of readily available hand sanitiser, and a population prone to chronic conditions, such as diabetes, cardiovascular disease and asthma."
"We cannot afford an outbreak. We owe these people a duty of care".
Dr Wodak called for an immediate, high level meeting between the Prime Minister, Department of Home Affairs and state Ministers for Corrective Services with a view to facilitating the speedy transfer for detainees and inmates from these centres to the community.
Read Dr Wodak's statement HERE.
*Dr Wodak is Emeritas Consultant at the Alcohol and Drug Service, St Vincent's Hospital (he was Director of service from 1982-2012). Dr Wodak has been a fierce advocate for the prevention of HIV among people who inject drugs, prevention of alcohol problems and drug policy reform. He is President of the Australian Drug Law Reform Foundation and was President of the International Harm Reduction Association (1996-2004). He helped establish the first needle syringe programme and the first supervised injecting centre in Australia when both were pre-legal and often works in developing countries on HIV control among among people who inject drugs. Dr Wodak helped establish the National Drug and Alcohol Research Centre, the Australian Society of HIV Medicine and the NSW Users AIDS Association.