The seven judges unanimously agreed that the warrant was invalid, partly because it failed to state the offense suspected with sufficient precision. But the majority of judges rejected her application for the material seized to be destroyed, meaning police could still use it as evidence against her.
The raid followed an article written by Smethurst and published in April 2018 that was based on classified government documents. The article reported that Defense Department and Home Affairs Department bosses had canvassed giving a security agency new legal powers to spy on Australians.
A day after the Canberra raid, police executed warrants on the Sydney headquarters of Australian Broadcasting Corp. in search of unrelated leaked government documents. ABC journalists Dan Oakes and Sam Clark — who reported in 2017 that Australian troops had killed unarmed men and children in Afghanistan in a potential war crime — as well as Smethurst could be charged over their reporting.
Australian Federal Police Commissioner Reece Kershaw said the evidence taken from Smethurst had been “quarantined” from the investigation for the moment. “So what we’ll do carefully and correctly is take legal advice ... on what we do with that particular material,” Kershaw told reporters. “Investigators are not able to look at that.”
Both the Smethurst and ABC investigations were being reviewed by a newly formed Sensitive Investigation Oversight Board chaired by Deputy Police Commissioner Neil Gaughan. Kershaw said he expected both investigations to be resolved within weeks.
News Corp. Australasia Executive Chairman Michael Miller called on the government to change the law so that 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 in a statement. “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 declined to comment on the possibility of police using evidence gathered with an invalid warrant, saying he had yet to read the court’s 170-page judgment. Paul Murphy, chief executive of Australia's journalists union — Media, Entertainment and Arts Alliance — said the three 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 argue that press freedoms have been eroded by more than 70 counterterrorism and security laws passed by Parliament since the 9/11 attacks in the U.S.
They want assurance that journalists will not risk prison sentences for doing their jobs. The government responded by asking a parliamentary committee to hold an inquiry into the impact of Australian law enforcement and intelligence powers on press freedom.