Annika Smethurst raid: AFP search of journalist’s home ‘amounted to trespass’

The AFP should be forced to destroy material extracted from a journalist’s phone during a raid, lawyers argue.

News Corp journalist Annika Smethurst. Picture: Gary Ramage

Lawyers for News Corp journalist Annika Smethurst have argued the Australian Federal Police should be forced to destroy the information they extracted from her phone during the high-profile raid of her Canberra home earlier this year.

Stephen Lloyd SC, appearing for Smethurst and Nationwide News, told the High Court on Tuesday the warrant the AFP used to enter the journalist’s home had “spectacularly broad definitions” and was invalid.

He argued the search amounted to trespass.

In their submissions, Smethurst’s lawyers have questioned whether the warrant was valid because it did not precisely state the alleged offence and infringed the implied freedom of political communication.

Mr Lloyd told the High Court on Tuesday the lack of detail in the warrant was “apt to mislead Smethurst and the executing officers” to allow a broader search of any material critical of the government.

“On 29 April 2018, Annika Smethurst and the Sunday Telegraph communicated a document or article to a person, that was not in the interest of the commonwealth, and permitted that person to have access to the document, contrary to section 79(3) of the Crimes Act 1914, Official Secrets,” the warrant reads.

During the search, Smethurst was forced to give investigators the code to unlock her mobile phone, which was then used by AFP officers to copy the material stored on it.

Mr Lloyd said a damages payout would not “undo the consequences of the trespass” and any relief to Smethurst would require the deletion of any files the AFP had extracted or a court order preventing police from using the material.

But the full court of Australia’s highest court questioned why they should let that happen and asked Mr Lloyd to clarify whether the information taken from the phone was confidential, or merely private. He will argue the point in greater detail on Wednesday morning.

In April 2018, Ms Smethurst published three stories in The Sunday Telegraph about a draconian proposal to allow the Australian Signals Directorate to spy on Australians without a warrant.

A day later, the matter was referred to the AFP for investigation, with police choosing to launch a raid on Smethurst’s home on June 4.

Solicitor-General Stephen Donaghue, QC, said the warrant “could not have been clearer” when it came to the search’s objective.

“In a real world, the plaintiff [Smethurst] could not have been confused by what was occurring,” Mr Donaghue said.

He argued that while the grammar used in the warrant was “not good” and the description was “inapt”, it could not have been interpreted by officers as a blank cheque to seize anything in Smethurst’s home that was critical of the government.

Mr Donaghue said the warrant included the date of the published story as well as Smethurst’s name and The Sunday Telegraph, which it wasn’t required to do.

But the High Court judges pressed Mr Donaghue if the warrant had sufficient information regarding the search terms, to which he replied: “there was quite a lot of guidance.”

The AFP raid, as well as a separate search of the ABC’s Sydney headquarters in June of this year, ignited fierce public debate about government secrecy and freedom of the press in Australia.

The government argues that even if the material was seized unlawfully from Smethurst’s home police should be allowed to use it in the event criminal proceedings are launched.

The hearing, set down for two days before all seven High Court judges, continues.