Annika Smethurst: High Court rules police warrant for raid was invalid
The High Court has ruled the warrant used to raid News Corp journalist Annika Smethurst’s home was invalid and the seizure of data was unlawful.
Canberra Star
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The High Court has ruled the warrant used by the Australian Federal Police (AFP) to raid News Corp reporter Annika Smethurst’s Canberra home last year was invalid.
All seven judges found the search warrant was invalid, and that the raid on Smethurst’s home and the seizure of data was unlawful.
The Court ordered the warrant be quashed.
News Corp reporter Annika Smethurst had her Canberra apartment raided in 2019 over stories she wrote revealing secret plans to expand the government’s spying powers.
The full bench of the High Court on Wednesday unanimously found there was not enough precision in the drafting of the warrant.
But only a minority of judges said the AFP should hand over a USB stick of files copied from Smethurst’s phone and delete copies of files that officers seized.
This means the AFP could still use the files in a possible future prosecution of Smethurst or her source.
During the raid, police were looking for documents relating to a story Smethurst wrote in 2018 revealing a push for spy agency The Australian Signals Directorate to have greater powers to snoop on Australians.
News Corp lawyers had sought for police to delete any files the AFP extracted or a court order preventing police from using the material after Smethurst was forced to give investigators the code to unlock her mobile phone during the raid.
Stephen Lloyd SC, who represented Smethurst and News Corp, had argued the warrant used to enter The Sunday Telegraph’s political editor’s home had “spectacularly broad definitions” and was invalid. He argued the search amounted to trespass.
But Solicitor-General Stephen Donague QC said the warrant and its objective “could not have been clearer”.
Mr Lloyd SC also argued a now-defunct “official secrets” provision of the Commonwealth Crimes Act was invalid because of the implied constitutional right to freedom of political communication.
But the judges found they did not need to consider that question since the warrant was not valid.
One of the judges, Justice Michelle Gordon, said: “Officers of the Commonwealth are subject to the law and must obey the law.”
The court’s finding that the raid was unlawful means a potential prosecution of Smethurst would be difficult, and a trial judge would have the power to exclude the files from evidence if Smethurst were to be prosecuted.
Any prosecution of Smethurst would also have to be approved by Attorney-General Christian Porter but could trigger a return to the High Court to revisit the Constitutional question the judges found it unnecessary to answer in this round of proceedings.
The unprecedented raid on Smethurst’s home, along with separate AFP raids on the ABC’s Sydney headquarters, have become a flashpoint for renewed debate about press freedom in Australia, prompting a coalition of major media outlets to campaign for increased public transparency surrounding sensitive political issues, such as intelligence agencies and the military, which successive governments have clamped down on.
News Corp Australasia executive Chairman Michael Miller said the High Court had send an “indisputable message” to the AFP.
“All Australians should be extremely concerned that a journalist’s home can be raided illegally,” Mr Miller said.
“It’s now vital that the Federal Government must allow media organisations to contest warrants against journalists to avoid debacles like this one occurring again.
“Annika Smethurst should not be prosecuted for simply doing her job as a journalist to rightly inform Australians on serious matters of public interest.
“It’s time for the Federal Government to bring this sorry mess to a prompt end. It’s time to end Annika’s ordeal.”
The AFP has been ordered to pay court costs.