AFP won’t rule out pursuing charges as News Corp journalist Annika Smethurst wins High Court case, raid warrant ruled invalid
Despite the High Court ruling a warrant used to raid her home was invalid, the AFP Commissioner says charges are under review.
The High Court has rebuked the Australian Federal Police, finding a raid on the home of News Corp journalist Annika Smethurst in June last year, after she wrote a story on national security, was illegal.
But Australian Federal Police Commissioner Reece Kershaw on Wednesday failed to rule out prosecuting Smethurst despite the High Court ruling.
In a win for News Corp and Smethurst, the High Court on Wednesday unanimously ruled there should be an order quashing the “invalid” warrant used to raid Smethurst’s home.
It ordered the AFP to pay the plaintiffs’ legal costs.
While Mr Kershaw said he anticipated police investigations into Smethurst and two ABC journalists over leaked sensitive documents would be resolved within weeks, News Corp Australasia chief executive Michael Miller demanded the Morrison government “bring this sorry mess to a prompt end” without prosecution.
News Corp, publisher of The Australian, was concerned the court did not force the AFP to hand back data it obtained from Smethurst’s phone, which she was forced to unlock and hand over during the raid.
Mr Kershaw said the data had been quarantined, with investigators unable to look at the material.
The AFP raided Smethurst’s Canberra home in June last year over a 2018 story suggesting the country’s cyber spy agency, the Australian Signals Directorate, could monitor Australians for the first time.
The next day, the ABC’s headquarters were raided over a series of 2017 stories that formed The Afghan Files, written by Dan Oakes and Sam Clark.
Mr Miller seized on the High Court decision to renew calls for the federal government to introduce a contested warrants process as a matter of urgency to avoid future “debacles”.
“Annika Smethurst should not be prosecuted for simply doing her job as a journalist to rightly inform Australians on serious matters of public interest,” he said.
“It’s time for the federal government to bring this sorry mess to a prompt end. It’s time to end Annika’s ordeal. All Australians should be extremely concerned that a journalist’s home can be raided illegally.”
Judgment has been delivered in Smethurst & Anor v Commissioner of Police & Anor https://t.co/okSVWCpnLo https://t.co/vK5QdAmv2q
— High Court of Australia (@HighCourtofAus) April 15, 2020
The Smethurst and ABC matters have been referred to the AFP’s newly established sensitive investigation oversight board.
Mr Kershaw said legal advice had been sought following the High Court’s judgment and some decisions had to be taken before resolving the investigations.
“We accept the decision of the High Court and respect the High Court and that particular judgment,” Mr Kershaw said.
“We don't set out to do illegal raids. Our officers act in good faith and in accordance with the law. The court system is there to provide, I guess, an opportunity for those who challenge the validity.
“It was deemed invalid, but setting up the sensitive investigation board, I think we learn from these particular matters and we’ll be implementing any changes that are required.”
ABC managing director David Anderson said the High Court’s judgment highlighted the need for further law reform, warning it should not be the role of a media organisation to litigate “to reform fundamentally bad laws”.
“While this decision is welcome, it in no way mitigates the urgent need for legal reform to ensure professional journalism and whistleblowers are appropriately protected,” he said. “The AFP raids both on the home of News Corp journalist Annika Smethurst and the ABC’s Ultimo offices amount to an assault on public-interest journalism and the decision today does not change that.”
Communications Minister Paul Fletcher told The Australian the High Court result was “an important reminder that nobody is above the law”.
“The police are as subject to the rule of law as everybody else. The High Court has held the search warrant was invalidly issued or executed and therefore it’s been set aside,” he said.
Mr Fletcher would not commit to further changes to the law being requested by media companies, including contestable warrants and further protection for journalists and whistleblowers being prosecuted, which is being considered by the parliamentary joint committee on intelligence and security.
The High Court judges found the Smethurst warrant did not specify the offence under investigation and misstated relevant law.
The justices split on whether Mr Kershaw should deliver the USB drive to Smethurst that contained the data police copied from her phone during the raid, in order for the data to be deleted.
Because the warrant was invalid, the court did not consider whether it infringed on the freedom of political communication.
Opposition legal affairs spokesman Mark Dreyfus said the government needed to rule out prosecution of Smethurst, Oakes and Clark.
“The other thing clear from this decision … is that, while the court has ruled that the raid on Ms Smethurst’s home was unlawful, it has not prevented the police from holding on to this material,” he said. “It remains the case that police could possibly use this material in a subsequent criminal prosecution of Ms Smethurst. That’s something that the government can now put to rest.
“It should rule out the prosecution of Ms Smethurst or any other journalists for simply doing their job.”
Greens senator Sarah Hanson-Young said she would push ahead with trying to introduce a media freedom act that would allow for a contested warrants process, protect whistleblowers with a public-interest defence and put the onus on prosecutors to disprove public interest.
There would also be universal shield laws across the country to protect journalists from being forced to reveal their sources.
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