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Snapshot

  • In the recent judgment of Smethurst v Commissioner of Police [2020] HCA 14, the High Court unanimously ruled invalid the search warrant executed on the home of News Corp journalist Anika Smethurst – but only a minority of justices was prepared to order the return of items seized during the search.
  • A judicial challenge to a search warrant executed on the ABC headquarters in Sydney was rejected by the Federal Court in Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133.

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.

Challenge to the validity of the warrant

By way of application to the High Court, Ms Smethurst and News Corp sought (among other things) a writ of certiorari quashing the warrant executed on 4 June 2019, and an injunction compelling the delivery up or the destruction of the material seized pursuant to the warrant. On 15 April 2020, the High Court unanimously ruled the search warrant invalid because it did not state with sufficient precision the offence to which the warrant related, and misstated the substance of s 79(3) of the Crimes Act, as it stood on the date Ms Smethurst’s articles were published.

As observed by Kiefel CJ, Bell and Keane JJ (at [25]): ‘[I]t remains a concern of the legislature, in enacting provisions authorising warrants for search and seizure, to provide a measure of protection to persons affected by warrant. It does so in large part by ensuring that the object of the warrant is identified by reference to a particular offence and that the limits of the authority to search may thereby be discerned. The courts’ insistence on strict compliance with the statutory conditions for a warrant gives effect to this legislative purpose.’ The Court stressed there is no fixed test for assessing the sufficiency of what is conveyed in a warrant about the offence to which the warrant relates; ‘rather in each case it is necessary to apply the principle that the warrant should describe the nature of the offence so as to indicate the bounds of the search, and to assess the sufficiency of what is provided from the point of view of those reading it’ (see Kiefel CJ, Bell and Keane JJ at [30], Gageler, Nettle and Gordon JJ agreeing, in separate judgments). See also the judgment of Edelman J, in particular [204] and [206]-[225].

Should seized items be returned?

Having determined the warrant was invalid, the Court turned to the question of relief. Although all seven justices said there should be an order for certiorari quashing the search warrant, only a minority would countenance the return of items seized during the search.

The plurality, comprising Kiefel CJ, Bell and Keane JJ, considered that the plaintiffs identified no sufficient right or interest requiring protection by way of a mandatory injunction. There was, for example, no claim by the plaintiffs that items taken by police during the search were confidential, nor any claim by the plaintiffs to a right to privacy, actionable for a breach (at [47]-[48]). It was put on behalf of the plaintiffs that an injunction should be granted to reverse or protect them from the effects of the trespass committed as a result of the warrant being invalid; however, the plurality rejected that proposition, instead favouring the principle that a plaintiff does not obtain an injunction for actionable wrongs for which damages are the proper remedy, and that an injunction in equity’s auxiliary jurisdiction will only issue to protect an existing legal right (at [75] and [77]). The plurality also embraced the notion ‘that the courts will refuse to exercise their discretion to grant equitable relief when to do so would prevent the disclosure of criminality which it would, in all circumstances, be in the public interest to reveal’ (at [99]). In a similar vein, the plurality stated that in circumstances where items are seized subject to an invalid warrant and advanced in aid of a prospection, the Court’s discretion to admit or exclude such items as evidence at trial will be likely to assume some significance (at [65]). (See e.g. s 138 of the Evidence Act 1995 (Cth)).

Justice Nettle agreed with the plurality that injunctive relief should be refused (see [156]-158]).

Justices Gageler, Gordon and Edelman took a different view. Justice Gageler was satisfied that, absent a valid search warrant, ‘the AFP had no statutory justification for the infringements of Ms Smethurst’s common law rights … [and] no statutory immunity from the common law consequences of those infringements’ (at [119]). For the trespass she suffered, Ms Smethurst ‘has a common law cause of action against the AFP in respect of which she is entitled to damages at common law’; however, as his Honour observed (at [122]), ‘money alone cannot restore [Ms Smethurst] to the position she would have been in had the trespass not been committed’. His Honour then stated (at [127]-[130]):

‘The remedy of an injunction being constitutionally available within the original jurisdiction of the High Court, the appropriate remedy for the unauthorised invasion by an officer of the Commonwealth of a common law right of a citizen of Australia cannot be presumptively confined to the common law remedy of damages … The juridical basis for the final mandatory injunction sought by Ms Smethurst lies in its issue within the discretion of the Court being constitutionally appropriate to restore Ms Smethurst to the position she would have been in had her common law rights to control access to her real and personal property not been invaded by the tortious conduct of the AFP in circumstances in which money alone cannot restore her to that position.’

Justice Gordon held a similar opinion: ‘The law would take a seriously wrong turn if this Court held that it could not grant an injunction to restore a plaintiff, so far as possible, to the position they would have been in had power not been exceeded without the plaintiff [additionally] demonstrating … a private right is also breached by retaining what was seized’ (at [165]).

Justice Edelman was likewise satisfied (at [262]) that damages would be inadequate to compensate Ms Smethurst for her loss. And although disposed to grant the injunctive relief, his Honour expressed concern (at [268]ff) that it extend no further than was necessary to ameliorate the adverse consequences of the wrongdoing to Ms Smethurst. To that end, Edelman J proposed an order that the Commissioner of Police return to Ms Smethurst items seized during the search, but framed the order as being ‘subject to the terms of any lawful warrant’.

Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133

In July 2017, the ABC published a series of online stories concerning the operations of the Australian Defence Force in Afghanistan; the stories referred to security-classified documents. The AFP commenced an investigation in connection with the stories, and, in June 2019, obtained from a Registrar of the Local Court a warrant authorising entry into the ABC ‘in order to search for specified classes of things that there were reasonable grounds for suspecting would afford evidence as to the commission of … offences’, contrary to s 73A(2) of the Defence Act 1903 (Cth) and s 132.1 of the Criminal Code Act 1995 (Cth). By way of application to the Federal Court, the ABC challenged the warrant; however, on 17 February 2020, Abraham J dismissed the application.

Her Honour’s reasons are lengthy, and traverse a range of interesting topics, including the protection of sources and the implied freedom of political communication – but the plaintiff’s application was dismissed for (among other reasons) a failure to demonstrate that the warrant lacked ‘a real and meaningful perimeter to the search, and that the offences [identified in the warrant were] expressed in a conclusionary, vague and uncertain manner’ (at [105]ff).

That is to say, the warrant executed on the ABC did not suffer the same technical defects that invalidated the warrant executed on the home of Ms Smethurst.

Conclusion

In both cases, the courts took a largely orthodox approach to the question of validity: the warrant must inform those executing it, and those upon whose property it is to be executed, as to the scope of the search that is authorised. A failure to meet that standard will typically invalidate a warrant. The consequence of a ruling of invalidity, however, does not necessarily result in an order for the return of items seized during the purported lawful execution of the warrant. Questions of validity aside, these cases also illustrate that the media is not immune from police operations in circumstances where the commission of a criminal offence is suspected. The challenge for law and policy makers is whether that is appropriate in every case, particularly where the media’s role in the suspected commission of that criminal offence intersects with the genuine reportage of a matter of clear public interest.


Bradley Dean is a barrister in 8 Wentworth Chambers.