AFP raid on wrong side of law

Now the High Court has ruled unanimously that the Australian Federal Police’s raid on the Canberra home of News Corp journalist Annika Smethurst on June 4 last year was illegal, the Morrison government should bring the shameful mess to a swift end. It needs to rule out the possibility that Smethurst could still be prosecuted for doing her job — to inform Australians on serious matters of public interest, as News Corp Australasia executive chairman Michael Miller said on Wednesday. The 2018 news story that prompted the raid on Smethurst should concern all citizens. It suggested that government departments were considering allowing the nation’s cyber spy agency, the Australian Signals Directorate, to monitor Australians for the first time.

The warrant that authorised the raid on Smethurst’s home was issued by a new magistrate at an uncontested hearing where the only argument heard was that of the AFP. In their decision, the High Court justices found unanimously that the flawed warrant did not specify the offence under investigation. The warrant also misstated the relevant law. The court ordered the AFP to pay the costs of Smethurst and News Corp, publisher of The Australian.

The decision is welcome. But the court invoked no principles about free speech or the public’s right to know. By a majority of 4-3 the High Court also decided not to order the AFP to return the information seized in the raid. Nor will the decision prevent future raids on journalists, based on similar errors by novice magistrates. The only way to prevent such conduct in future will be for the Morrison government to accept the logic of having the AFP applications for search warrants against the media subjected to contestable hearings.

As legal affairs editor Chris Merritt writes on Thursday, providing for contestable warrant hearings would be a modest, procedural change that would confer no special privileges on the media. But allowing media organisations to contest such warrants against journalists would help avoid debacles like this in future.

Freedom of speech and freedom of the press are in poor shape in Australia. The day after Smethurst’s home was raided, the ABC’s Sydney headquarters were raided over a series of 2017 stories about the conduct of some of the nation’s special forces in Afghanistan.

AFP Commissioner Reece Kershaw made it clear on Wednesday afternoon that the force has still not ruled out pursuing charges against Smethurst and the ABC journalists. The commissioner also announced an internal review of the investigations into the journalists. He did not move to return the material obtained in the raid. As Merritt writes on Thursday, even common thieves, when sprung, are required to give back their ill-gotten gains. “The AFP, it seems, are now to be treated as legally privileged burglars free to pillage and keep the property of others.’’