The High Court of Australia quashes search warrant on journalist's home

Smethurst v Commissioner of Police [2020] HCA 14

Summary

The High Court of Australia (HCA) unanimously held that the search warrant relied upon by the Australian Federal Police (AFP) to enter and search the residence of journalist, Ms Annika Smethurst, was invalid. The invalidity of the search warrant rendered the AFP's entry into and search of Ms Smethurst's residence unlawful and an act of trespass. As relief, the HCA quashed the warrant and awarded the plaintiffs costs but refused to grant a mandatory injunction to reverse or protect them from the effects of the trespass.

Facts

On 29 April 2018, The Sunday Telegraph published articles authored by Ms Smethurst, reporting that proposed amendments to existing legislation would expand the powers of the Australian Signals Directorate to allow it to covertly access data on Australian and foreign citizens. The articles were published with images of classified documents which were referred to the AFP for investigation. As part of the investigation, the AFP obtained search warrants authorising them to enter and search Ms Smethurst's residence on the suspicion that she had committed an offence under s 79(3) (now repealed) of the Crimes Act 1914 (Cth) and material evidence would be found at her residence. Section 79(3) prohibits any individual from communicating or allowing someone to have access to an official secret without authorisation, and carries a maximum penalty of two years imprisonment.

On 4 June 2019, the AFP raided Ms Smethurst's residence, relying on the authority of one of the search warrants issued to the AFP by a magistrate. During the search, the AFP located and copied documents saved on Ms Smethurst's phone to a USB drive that would be retained by the AFP. Ms Smethurst and her employer, Nationwide News Pty Limited, commenced proceedings in the HCA to challenge the validity of the search warrant.

Decision

The HCA unanimously found that the search warrant was invalid because the offence arising under s 79(3) of the Crimes Act 1914 (Cth) had not been identified with sufficient precision, and its substance had been substantially misstated. In addition to a writ of certiorari to quash the warrant, the plaintiffs sought relief in the form of a mandatory injunction that would either:

• require the destruction or delivery of the information on the USB drive retained by the AFP; or

• restrain the AFP from making the information on the USB drive available to the prosecuting authority.

It was contended by the plaintiffs that an injunction would reverse or protect them from the effects of the trespass committed as a result of the invalid warrant. Ultimately, the HCA refused (4:3) to grant the plaintiffs a mandatory injunction. The plurality set out three bases for an injunction to be issued:

• to protect a private law legal or equitable right;

• to enforce a public right created by statute; and

• to remedy the consequences of a post but spent tort.

The plurality held that the plaintiffs did not have a present legal or equitable right to the information held on the USB drive. The plurality further held that an injunction could not be granted to enforce a public right created by statute without a prohibition on the AFP using illegally obtained information under the relevant legislation. The plurality rejected the argument that an injunction was necessary to remedy the trespass. Adopting the test set out in Patrick Stevedores, equity would only intervene if the damage sustained was 'very serious' or the effects of the trespass were ongoing. Although their Honours acknowledged that the potential exposure of Ms Smethurst to criminal prosecution had serious consequences, these were not the kinds of 'damage' contemplated by the law. Nettle J agreed with the plurality that an injunction should not be granted because the mere fact that the warrant was unlawful did not provide a sufficient basis for the granting of a restorative injunction. His Honour noted that his finding would have been different if the search had been in bad faith and not a bona fide attempt to comply with the Crimes Act 1914 (Cth). Only two judges, Gageler and Gordon JJ (in separate judgements) accepted the argument that a mandatory injunction should be granted under s 75(v) of the Constitution which provides that the HCA has original jurisdiction to grant an injunction against an officer of the Commonwealth.

The HCA provided non-binding commentary on the question of whether a tort of privacy could be recognised as a basis for injunctive relief for individuals to prevent the retention and use of illegally obtained material that is considered 'private'. Citing ABC v Lenah Game Meats, the plurality noted that the HCA had only determined that a corporation did not have an actionable right to privacy, and the existence of such a right afforded to individuals is yet to be determined. The judges' commentary in this decision suggests that a tort of privacy is likely to develop from extending the existing category of protections afforded to confidential information. The applicability and formulation of a tort of privacy as a basis for injunctive relief for individuals remains a live issue in Australia to be raised in future cases.

The full text of the decision is available here.