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High Court rules AFP warrant for journo raid invalid

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The High Court has found a warrant used by federal police to raid a journalist’s home after reporting secret plans to extend government spying powers was invalid, and ordered that it be quashed.

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News Corp reporter Annika Smethurst had her Canberra apartment raided in 2019 over stories written a year earlier.

In April 2018, Smethurst published stories in The Sunday Telegraph about a proposal to allow the Australian Signals Directorate to spy on Australians without a warrant.

The matter was referred to the AFP, which raided the journalist’s home in June last year.

During the hours-long search of her home, Smethurst was ordered to give investigators the code to unlock her mobile phone, with AFP officers copying material stored on it.

Smethurst and News Corp later mounted a legal challenge to the validity of the AFP warrant.

The full bench of the High Court on Wednesday unanimously found there was not enough precision in the drafting of the warrant.

In its judgement, the Court ruled it “relied upon there being “reasonable grounds for suspecting” that the things mentioned in it would afford evidence as to the commission of a Commonwealth indictable offence”.

“In particular, the warrant stated that Ms Smethurst and the Sunday Telegraph “communicated a document or article 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, Official Secrets,” the judgement read.

It said that AFP officers relying on the warrant copied data from Smethurst’s mobile phone onto an AFP laptop, with documents that were “identified as falling within the terms of the warrant” copied onto a USB stick.

“The material was then deleted from the laptop, Ms Smethurst’s phone was returned to her and the USB stick was taken from the premises. Ms Smethurst and Nationwide News (“the plaintiffs”) commenced proceedings in the original jurisdiction of the High Court seeking, among other things, to have the warrant quashed, and to obtain a mandatory injunction requiring the delivery up or destruction of the material copied from Ms Smethurst’s mobile phone,” the judgement said.

“The High Court unanimously held that the warrant relied upon by the AFP was invalid on the ground that it misstated the substance of s 79(3) of the Crimes Act, as it stood on 29 April 2018, and failed to state the offence to which the warrant related with sufficient precision. The entry, search and seizure which occurred on 4 June 2019 were therefore unlawful.”

However, the full bench did not order that material seized during the search be destroyed.

The court did not consider whether the raid infringed on implied freedom of political communication.

The AFP has been ordered to pay court costs.

A day after the Smethurst raid in 2019, the AFP raided the ABC’s Sydney headquarters over 2017 stories about alleged war crimes in Afghanistan, sparking a political row over media freedoms.

-with AAP

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