High court rules AFP warrant for raid on News Corp journalist’s home was invalid
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- Category: Uncategorised
- Created: Thursday, 16 April 2020 01:46
- Written by Paul Karp - The Guardian
Court quashed warrant but did not order federal police to destroy material, exposing Annika Smethurst and source to possible prosecution.
The News Corporation journalist Annika Smethurst has won a high court case challenging the legality of the police raid on her home seeking the source of leaked classified material on plans to expand powers to spy on Australians.
But in a mixed result for Smethurst, the court quashed the raid warrant but did not order police to destroy the material seized, exposing the reporter and her source to possible prosecution.
Police may keep the material, opening the possibility a future court could exercise its discretion to allow it to be admitted into evidence if a prosecution is commenced, notwithstanding the illegality of the raid.
The Australian Federal Police commissioner, Reece Kershaw, told reporters in Canberra the material was “quarantined” while police obtained legal advice.
In November the solicitor general, Stephen Donaghue, told the high court the AFP’s undertaking not to use the material would expire at the end of the case.
Asked if the material could be used against Smethurst in court, Kershaw replied it was a legal question that required speculation but noted “there’s a difference between … illegally obtaining evidence and admissible evidence, and that’s a question we have asked our in-house legal team”.
Kershaw confirmed the police matter regarding former intelligence officer Cameron Gill was “still current”. Gill’s home was raided in September under a warrant stating that police suspected he was the source of Smethurst’s story, a fact revealed in the special case book of Smethurst’s high court appeal.
Guardian Australia does not suggest that Gill’s inclusion in the case book – a statement of facts and questions of law agreed by Smethurst and the Australian federal police – proves he is the source.
News Corp has said Smethurst has never revealed the source’s identity, even to her employer.
Earlier, in a plurality decision, the chief justice, Susan Kiefel, justices Patrick Keane and Virginia Bell, with justice Geoffrey Nettle agreeing separately, held that the Smethurst warrant was invalid, quashed it and ordered the federal police to pay costs.
The court unanimously held that police had misstated the substance of the offence of disclosing official secrets and failed to state the offence to which the warrant related with sufficient precision.
But a majority of the court declined to grant an injunction to delete the material, pointing to Smethurst’s lawyers’ inability to identify a sufficient right or interest that required protection.
In separate judgments, justices Michelle Gordon and James Edelman proposed that police should hand back a USB containing information copied from Smethurst’s phone and delete all other copies of material collected in the raid.
Justice Stephen Gageler also proposed police hand back the USB to rectify the “unauthorised invasion of a common law right to property”, accepting Smethurst’s lawyers submission that damages would not remedy the wrong.
Last June the Australian federal police raided Smethurst’s home seeking information about the publication of classified material revealing plans to extend the Australian Signals Directorate’s spying powers to domestic surveillance.
The Smethurst raid and a separate raid on the ABC headquarters over reporting of alleged war crimes in Afghanistan triggered a press freedom campaign which has won concessions including a requirement for the attorney general’s consent before the prosecution of journalists.
Kershaw said that both the Smethurst and ABC raid matters were under review by the AFP’s new “sensitive investigation oversight board”.
The attorney general, Christian Porter, has said he is “seriously disinclined” to approve prosecution of journalists for public interest journalism but has not ruled it out.
Smethurst launched a high court case challenging the legality of the raid and seeking destruction of material collected, which was opposed by Porter, who argued it “may well be important” for a potential future prosecution.
In oral hearings, Donaghue had asked the court not to “pre-empt” the exercise of discretion to admit evidence that could be exercised if a prosecution was commenced.
The shadow attorney general, Mark Dreyfus, welcomed the high court decision and targeted Scott Morrison for earlier comments about the raid that he was “never troubled” by Australia’s laws being upheld.
“Today the high court has unanimously made clear that our laws were not being upheld and Mr Morrison should be deeply troubled by that,” he said.
“Labor believes journalists should never face the prospect of being charged, or even jailed, just for doing their jobs.
“Law enforcement agencies should never be raiding journalists just because they are embarrassing the government.”
The communications minister, Paul Fletcher, said the decision showed the AFP was “subject to the rule of law” and legal requirements “weren’t met”.
The home affairs minister, Peter Dutton, has dismissed Smethurst’s report as “absolute nonsense” but has since repeatedly called for a public debate about extending ASD’s powers, doing so as recently as February.
In March Guardian Australia revealed that the Australian Signals Directorate has already spied on Australians in the last year, invoking “rare circumstances” and is seeking ministerial approval to extend its powers in an unspecified number of cases.
