While ruling the warrant was technically unlawful, the court declined to deliver the remedy sought by Smethurst’s lawyers, which was that the evidence collected by police be destroyed or kept from investigators.
This means the evidence could still be used in a prosecution over an April 2018 story that triggered the police investigation and led to the raid on Smethurst’s home over a year later. Use of the evidence would, however, be open to legal challenge based on the High Court’s finding the warrant was invalid.
The story by Smethurst, political editor of the Sunday Telegraph and News Corp’s other Sunday tabloids, concerned an internal government proposal to expand the domestic powers of electronic intelligence agency the Australian Signals Directorate. Police are pursuing former intelligence official Cameron Gill as the alleged source.
Three judges did argue police should be forced to delete data copied from Smethurst’s phone, diverging from the majority view that further justification was needed for the court to issue an injunction.
Justice Michelle Gordon said “the law would take a seriously wrong turn” if the court held that it had to prove a further breach to grant an injunction restoring a plaintiff to the position they had been in before power was exceeded. She said the unlawful nature of the search warrant was enough to justify the remedy for Smethurst.
The search of Smethurst’s home – and a raid on the ABC the next day as part of a separate leak investigation – sparked a national debate about press freedom. The “Australia’s Right to Know” coalition of media organisations has since launched a campaign for reforms to protect public interest journalism.
Smethurst’s lawyers had also mounted a separate argument the secrecy laws underpinning the search warrant were in breach of the implied freedom of political communication contained in the constitution.
The court found it was not necessary to consider this argument given their finding on the technical validity of the warrant.
Federal Police commissioner Reece Kershaw said the approach to sensitive investigations had been reviewed and a new internal oversight board would now consider the court’s findings and come to a decision on the leak investigations soon. He said he wanted the matter resolved “as expeditiously as possible”.
Mr Kershaw said the evidence collected by police had been “quarantined” and police were not able to access it for the time being, pending legal advice on what investigators can do with the material and how it could be considered in a future prosecution.
He said the matter of Mr Gill as the alleged source of the leak was ongoing. “At the end of the day, someone has actually leaked classified information, which is an offence. And that’s the starting point,” he said.
News Corp Australasia executive chairman Michael Miller said Smethurst should not face prosecution for doing her job of informing Australians.
“It’s time for the federal government to bring this sorry mess to a prompt end. It’s time to end Annika’s ordeal,” he said.
“It’s now vital that the federal government must allow media organisations to contest warrants against journalists to avoid debacles like this one occurring again.”
Labor’s home affairs spokeswoman Kristina Keneally and shadow attorney-general Mark Dreyfus called the decision a “humiliating rebuff” for the government. They said the government must rule out charging Smethurst and the ABC journalists.
“They must also now commit to reform of the law that properly protects freedom of the press and that addresses the concerns of the Australia’s Right to Know coalition,” Senator Keneally and Mr Dreyfus said in a statement.
The government referred enquiries on the High Court decision to the Federal Police.
“Every Australian has the right to challenge these types of matters and it’s been challenged and we live in a great democracy and we respect the court’s decision,” Mr Kershaw said.
While the government and police have repeatedly declined to rule out prosecution of Smethurst, Attorney-General Christian Porter has said he would be “seriously disinclined” to authorise charges against journalists.
The court also ordered the Federal Police to pay the costs of Smethurst and News Corp.
Fergus Hunter is an education and communications reporter for The Sydney Morning Herald and The Age.