Australian Court Invalidates Search Warrant on Journalist

Australia’s highest court unanimously invalidated a search warrant police used to search the home of journalist Annika Smethurst. Authorities had invaded her house to find the source of a leak of state secrets. Judges said seized documents could still be used as evidence against her, despite it being tainted by an unlawful search.

Unlike the United States which disallows evidence obtained unlawfully under the “fruit of a poisonous tree doctrine,” while the court ruled the warrant executed last year to search her Canberra home failed to state the offense suspected with sufficient precision, she could still face prosecution.

Smethurst, who works for News Corporation, went to the High Court seeking to overturn the warrant in a case that set off a national campaign for greater press freedom. In return, the campaign saw the government of Prime Minister Scott Morrison crack down on journalists and sources.

The majority of judges rejected her application for the material seized to be destroyed, opening the door for police to use it. It remains unclear whether this could create a precedent for authorities to break the law to get evidence and use it for prosecutions.

The raid followed an article written by Smethurst, published in April 2018 that was based on classified government documents, reporting Defense Department and Home Affairs Department chiefs were seeking legal powers to spy on Australian citizens.

A day after the Canberra raid, police executed warrants on the Sydney headquarters of Australian Broadcasting Corp. searching for unrelated leaked government documents used to report Australian troops killed unarmed men and children in Afghanistan in a potential war crime. The raid also aimed at securing evidence to charge journalists Dan Oakes and Sam Clark and Smethurst for revealing state secrets.

Australian Federal Police Commissioner Reece Kershaw said evidence taken from Smethurst had been “quarantined.”
“So what we’ll do carefully and correctly is take legal advice … on what we do with that particular material,” Kershaw told reporters, said The Associated Press. “Investigators are not able to look at that.”

Smethurst and ABC investigations were being reviewed by a new Sensitive Investigation Oversight Board chaired by Deputy Police Commissioner Neil Gaughan, and Kershaw said he expected both probes to wrap up soon.
Australia’s Constitution does not grant freedom of speech, giving the government wide leeway to go after journalists and media outlets.

News Corp. Australasia Executive Chairman Michael Miller called on the government to change the law so media organizations can contest such warrants in court before they are executed.

“The High Court ruling sends an indisputable message, that the Federal Police must obey the law and that their raid on Annika Smethurst’s home was illegal,” Miller said.

“Annika Smethurst should not be prosecuted for simply doing her job as a journalist to rightly inform Australians on serious matters of public interest.”

Communications Minister Paul Fletcher wouldn’t comment on whether police would use the unlawfully obtained evidence. Paul Murphy, Chief Executive of Australia’s journalists union, said the reporters faced potential prison sentences for reporting stories that were of legitimate public interest.

“Too often the government uses national security arguments as a shield to just try and prevent stories coming to light that cause them embarrassment,” Murphy told ABC.

Australian media organizations said press freedoms have been eroded by more than 70 counter-terrorism and security laws passed by Parliament since the Sept. 11, 2001 attacks in the US. They are calling on assurances journalists won’t be jailed for doing their jobs.

The government asked a parliamentary committee to hold an inquiry into the impact of Australian law enforcement and intelligence powers on press freedom.

In November, Solicitor-General Stephen Donaghue told the High Court police would not use the material, while Kershaw said, “There’s a difference between … illegally obtaining evidence and admissible evidence, and that’s a question we have asked our in-house legal team,” according to The Guardian Australia.

The paper in March revealed the Australian Signals Directorate has already spied on Australians, invoking “rare circumstances” and is seeking ministerial approval to keep up the practice.