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.