Smethurst v Commissioner of Police

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane JJ.,Gageler J.,Nettle J.,Gordon J.,Edelman J.
• Judgment Date: 15 April 2020
• Neutral Citation: [2020] HCA 14
• Court: High Court
• Docket Number: S196/2019
• Date: 15 April 2020

[2020] HCA 14

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

S196/2019

Annika Smethurst & Anor

Plaintiffs

and

Commissioner of Police & Anor

Defendants

Representation

S B Lloyd SC with P D Herzfeld and B Hancock for the plaintiffs (instructed by Ashurst Australia)

S P Donaghue QC, Solicitor-General of the Commonwealth, with C L Lenehan SC and S Zeleznikow for the first defendant and for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

C D Bleby SC, Solicitor-General for the State of South Australia, with K M Scott for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

K A Stern SC with D P Hume for the Australian Human Rights Commission, appearing as amicus curiae (instructed by Australian Human Rights Commission)

Submitting appearance for the second defendant

Constitution, s 75(v).

Australian Federal Police Act 1979 (Cth), s 8.

Crimes Act 1914 (Cth), Pts IAA, VII; ss 3C, 3E, 3F, 3H, 3LA, 3ZQU, 79(3).

Judiciary Act 1903 (Cth), s 32.

Police — Search warrants — Validity of warrant — Where police searched premises in reliance on warrant — Where police retained material copied from first plaintiff's mobile phone in reliance on warrant — Where warrant relied upon reasonable grounds for suspecting commission of Commonwealth offence — Where warrant purported to set out offence against s 79(3) of Crimes Act 1914 (Cth) — Whether warrant misstated substance of s 79(3) of Crimes Act — Whether warrant failed to state offence to which it related with sufficient precision.

Injunctions — Mandatory injunction — Principles applicable — Where plaintiffs sought mandatory injunction requiring destruction or delivery up of material obtained under invalid warrant — Where plaintiffs sought injunction restraining police from making information available to prosecuting authorities — Whether statutory basis for injunction — Whether plaintiffs identified legal right to support injunction in auxiliary jurisdiction — Whether consequences of trespass provide basis for injunction — Whether s 75(v) of Constitution provides basis for injunction — Whether damages inadequate — Whether injunctive relief should be refused on discretionary grounds.

Words and phrases — “adequacy of damages”, “auxiliary jurisdiction”, “basis for injunction”, “certiorari”, “computer or data storage device”, “constitutional injunction”, “constitutional remedies”, “constitutional writs”, “description of the offence”, “discretionary considerations”, “entry, search and seizure”, “equity”, “evidential material”, “injunction”, “injunctive relief”, “juridical basis”, “legal right or interest”, “mandatory injunction”, “misstatement”, “mobile phone”, “nature of the offence”, “official secrets”, “privacy”, “relief”, “remedy”, “right to privacy”, “search warrants”, “statement of offence”, “substance of the offence”, “sufficient interest”, “sufficient particularity”, “sufficient precision”, “trespass”.

ORDER

The questions of law stated in the special case filed on 6 September 2019 be answered as follows:

• (1) Is the search warrant issued on 3 June 2019 (“the Second Warrant”) invalid on the ground that:

  • (a) it misstates the substance of s 79(3) of the Crimes Act 1914 (Cth), as it stood on 29 April 2018?

    Answer: Yes.

  • (b) it does not state the offence to which it relates with sufficient precision?

    Answer: Yes.

  • (c) s 79(3) of the Crimes Act, as it stood on 29 April 2018, was invalid on the ground that it infringed the implied freedom of political communication?

    Answer: Does not arise.

• (2) Is the order issued on 31 May 2019 under s 3LA of the Crimes Act invalid on the ground that:

  • (a) at the time it was made, the Second Warrant was not in force?

  • (b) it was made in aid of a different warrant, namely the warrant issued on 31 May 2019 (“the First Warrant”)?

  • (c) it did not specify the information or assistance required to be provided by the first plaintiff, with sufficient precision, or at all?

  • (d) it did not specify the computer or data storage device to which it related, with sufficient precision, or at all?

    Answer: Unnecessary to answer.

• (3) Was s 79(3) of the Crimes Act, as it stood on 29 April 2018, invalid on the ground that it infringed the implied freedom of political communication?

  Answer: Unnecessary to answer.

• (4) If the answer to any or all of questions (1)—(3) is “yes”, what relief, if any, should issue?

  Answer: There should be an order for certiorari quashing the search warrant issued on 3 June 2019.

• (5) Who should pay the costs of and incidental to this special case?

  Answer: The first defendant should pay the plaintiffs' costs of the special case.

1 Kiefel CJ, Bell And Keane JJ. The first plaintiff, Ms Annika Smethurst, is a journalist. She is employed by the second plaintiff, Nationwide News Pty Ltd, which is the publisher of the Sunday Telegraph newspaper and a website. On 29 April 2018, the second plaintiff published articles in its newspaper and on its website of which the first plaintiff was the author. The three articles published in the newspaper were entitled: “We don't want Big Brother watching”; “Secret plan to spy on Aussies”; and “Spies told just keep looking elsewhere”. Those articles published on the website were entitled: “Spying shock: Shades of Big Brother as cyber-security vision comes to light” and “We Don't Want Big Brother Watching”. In general terms the articles informed the reader that amendments which were proposed to existing legislation would extend the powers of the Australian Signals Directorate (“the ASD”) so as to enable it to covertly access data respecting not only foreigners but also Australian citizens. The articles contained expressions of concern and alarm.

2 Two of the articles contained an image of the top part of a document entitled “MINISTERIAL SUBMISSION”. Its subject matter was stated to be “ASD AS A STATUTORY AGENCY — FURTHER AMENDMENTS TO THE INTELLIGENCE SERVICES ACT 2001”. The document bore the markings “SECRET AUSTEO COVERING TOP SECRET COMINT AUSTEO”.

The Second Warrant and the search

3 Sometime after 30 April 2018 the Australian Federal Police (“the AFP”) commenced an investigation into the publication of the articles. On 31 May 2019, in the course of that investigation, a member of the AFP obtained a warrant from a magistrate (“the First Warrant”) to enter and search the residential premises occupied by the first plaintiff and to search her motor vehicle. On the same day the magistrate made an order under s 3LA of the Crimes Act 1914 (Cth) (“the s 3LA Order”) directed to the first plaintiff, which required her to provide any reasonable and necessary information and assistance to enable a constable to access, copy and convert data held on a computer or data storage device into documentary form.

4 Due to concerns held by the member of the AFP who was named as the executing officer in the First Warrant about whether it authorised a search of the specified vehicle if it was not at the first plaintiff's premises, further separate warrants were obtained on 3 June 2019. One warrant (“the Second Warrant”) was directed to the premises and the other to the vehicle. The warrant respecting the vehicle has never been executed.

5 The Second Warrant was in the same terms as the First Warrant so far as it concerned the search of the first plaintiff's residence. It was six pages in length. It stated that the magistrate was satisfied by information on oath that there were reasonable grounds for suspecting that there was, or would within the next 48 hours be, at those premises “evidential material, as defined in the Crimes Act” which satisfied all of the three conditions which were set out in the warrant.

6 The first condition was said to relate to the kinds of things that were the subject of the Second Warrant. It was stated broadly and included any notes, diaries, correspondence, emails and other forms of electronic messaging, minutes, reports, briefing documents, assessments, graphics, sketches or photographs, story pitch, planning logs, broadcast and online schedules, story boards, website content and USBs. The first condition also specified a document having the same title as the document the head of which appeared in two of the articles. It was described as a classified ASD document. The warrant was said to extend to both originals and copies of these things and to anything stored on a computer storage device or other storage device, together with any manual, instruction or password that assists to gain access to, interpret or decode any of those things.

7 The second condition referred to the persons or entities to whom those things might relate. They included the first plaintiff, the Sunday Telegraph, “News Corp”, the ASD, the Department of Home Affairs, the Department of Defence, a named individual and the webpage on which one of the two articles mentioned above was published.

8 The third condition commenced by explaining the purpose of seeking the things relating to the persons identified. It was said to be “as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following indictable offence(s) against the laws of the Commonwealth”. This statement then followed:

“On the 29 April 2018, Annika 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. This offence was punishable by 2 years imprisonment.”

9 On 4 June 2019, members of the AFP searched the first plaintiff's residence relying upon the authority of the Second Warrant. When the AFP located the first plaintiff's mobile telephone, the...