Search warrants and the ‘fourth estate’: recent judgments

Search warrants granted to and executed by the Australian Federal Police – one on the ABC headquarters in Sydney and another on the home of a News Corp journalist – attracted considerable public attention last year, raising questions about the extent of police powers to search and seize items from property owned by media organisations and others in the ‘fourth estate’. Both warrants were subjected to judicial challenge, and recent judgments by the High Court of Australia and Federal Court of Australia resolve questions concerning their validity; however, the judgment of the High Court revealed a bench split on the question of relief.

Smethurst v Commissioner of Police [2020] HCA 14

Journalist Anika Smethurst authored articles regarding proposals to extend the powers of a Commonwealth agency, the Australian Signals Directorate. The articles were published by News Corp on 29 April 2018, with images of security-classified documents.

Following publication of the articles, the AFP commenced an investigation, and obtained search warrants issued by a magistrate, authorising police to enter and search Ms Smethurst’s home. The warrants were sought by the AFP on the basis of a suspicion ‘that they [would] afford evidence as to the commission of [an] indictable offence(s)’ – specifically, the communication of ‘a document … 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.’ On 4 June 2019, the AFP searched Ms Smethurst’s home, relying upon the authority of one of the warrants. During the search, AFP officers located documents on Ms Smethurst’s phone, and saved those documents to a USB stick, which was retained by the AFP.