Advertisement

Police powers – search warrants – validity of warrant

Smethurst v Commissioner of Police [2020] HCA 14 (15 April 2020) was a special case stating questions of law for the opinion of the Full Court of the High Court.

The first plaintiff, Ms Smethurst, was a journalist employed by Nationwide News Pty Ltd, the publisher of the Sunday Telegraph. On 4 June 2019, the Australian Federal Police (AFP) searched her residence. The police held a search warrant that had been issued by a magistrate the previous day. The warrant relied on acts by Ms Smethurst and the Sunday Telegraph on 29 April 2018 that were contrary to “section 79(3) of the Crimes Act 1914, Official Secrets”.

Believing that the warrant was valid, the AFP took possession of Ms Smethurst’s mobile phone. They demanded and obtained her passcode to access the phone. After they copied the data from her mobile phone to a laptop, the executing officer reviewed documents returned from keyword searches of the data obtained and selected the documents that he thought fell within the terms of the second warrant. Those documents were copied onto a USB storage device. The USB was kept by the AFP and the mobile phone data which had been copied to the laptop was deleted from the laptop.

The central issue in the special case was a challenge by Ms Smethurst and Nationwide News to the validity of the warrant. The warrant was challenged on the grounds that: it misstated the substance of s79(3) of the Crimes Act 1914 (Cth) (question 1(a)); it did not state the offence to which it related with sufficient precision (question 1(b)); and s79(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 (question 1(c)). If the warrant was invalid there was also a dispute about the consequential relief that should be granted, in particular whether the High Court should issue a mandatory injunction requiring the return to Ms Smethurst of the information obtained by the AFP (question 4).

The High Court concluded that the warrant issued on 3 June 2019 was invalid on the ground that it misstated the substance of s79(3) of the Crimes Act, as it stood on 29 April 2018, and on the ground that it did not state the offence to which it related with sufficient precision. The court made an order for certiorari quashing the warrant.

Kiefel CJ, Keane and Bell JJ jointly. Gageler, Nettle, Gordon and Edelman J each separately concurring.

David Kelsey-Sugg is a Victorian barrister, 03 9225 6286, email dkelseysugg@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.

Share this article

Leave a Reply

Your email address will not be published.

Search by keyword