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14 May 2020

A hollow victory for the press: Smethurst v Commissioner of Police

By Emily Tranter, Sefakor Zikpi and Simon Agnello

The effect is that the seized material remains in the hands of the AFP and we await to hear whether charges will be laid.

The High Court's recent decision in Smethurst v Commissioner of Police [2020] HCA 14 deals with an important question about what practical recourse is available to a private citizen when a Commonwealth official exceeds its powers.

The practical outcome of the High Court's decision – it is a reminder to those served with a warrant to review the terms of the search warrant very carefully at the time of any raid, and if there is to be a challenge to the validity of a search warrant, to do so expeditiously.

Media raids

On 4 June 2019, the Australian Federal Police (AFP) entered and searched the home of journalist Ms Annika Smethurst for material relating to her April 2018 Sunday Telegraph articles about proposed extensions to the powers of the Australian Signals Directorate, our domestic cyber security agency. Data from Ms Smethurst's personal mobile phone was copied and seized.

This raid, together with the raid on ABC's Ultimo headquarters the next day, prompted a robust response from media advocates in Australia and both Ms Smethurst and Nationwide News Pty Ltd (the publisher of the Sunday Telegraph) launched proceedings in the High Court for the return of the seized material.

Invalid search warrant

The High Court unanimously found that the search warrant executed by the AFP was invalid. The warrant failed to:

  • adequately identify any offence arising under section 79(3) of the Crimes Act 1914 (Cth); and
  • substantially misstated the nature of an offence arising under section 79(3) of the Crimes Act 1914 (Cth).

This meant that it was not apparent how the recipient of the warrant or the executing AFP officer could validly execute the search warrant as it was difficult to understand the boundaries of the search authorised by the warrant, as drawn by reference to the offence. Accordingly, the AFP had no authority to enter the recipient's home and take information from her mobile phone. Such entry was unlawful and constituted a trespass.

But what remedy?

The plaintiffs sought a mandatory injunction to reverse the consequences of the trespass. This would require the AFP to destroy or return the information seized, or at least not use the information for any potential criminal investigation. An injunction was also sought on the basis that section 75(v) of the Constitution permitted injunctions against a Commonwealth officer who acted outside their powers.

The High Court was split on whether to grant an injunction.

Ultimately, the High Court determined by a majority (4:3) that no injunction should be granted. It held that:

  • for an injunction to be ordered, the plaintiffs must have a legal right which an injunction would protect;
  • the plaintiffs could not point to a sufficient legal right that required protection by way of an injunction. The consequences of the trespass were not a basis for granting an injunction. In particular, the plaintiffs' interest in not being investigated for an offence if the seized material was not returned was not an actionable right;
  • even if the plaintiffs had established such a right, there were strong discretionary public interest considerations which would have denied the injunction, including the public interest in the investigation and prosecution of a crime; and
  • it is not sufficient to establish that a Commonwealth officer has acted in excess of its power to be granted an injunction under section 75(v) of the Constitution.

The effect is that the seized material remains in the hands of the AFP and we await to hear whether charges will be laid.

Difference of opinion

Given the strong difference of opinion, it is worth noting that the three separate dissenting High Court judgments found that an injunction should have been granted and the seized material should be returned.

In particular, there was support in these dissenting judgments for the following propositions which may draw further consideration in future challenges:

  • a person should not have to point to a separate legal right or cause of action to be granted an injunction as section 75(v) of the Constitution gives the High Court jurisdiction to restrain Commonwealth officers from exceeding their powers;
  • if it is necessary to identify an infringement of a legal right, the invasion of a recipient's private property, or their interest in resisting the potential dissemination of their private information should be enough; and
  • an injunction can be framed in terms that would not prevent the issue of a future warrant or any lawful steps in a criminal investigation.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.