Australian Court Says Raid Of Journalist's Home Was Illegal… But Allows Federal Police To Keep The Evidence They Seized

Legal Issues

from the wrong-but-not-wrong-enough-I-guess dept

Last year, the Australian government decided journalists just weren’t feeling chilly enough. In response to the publication of leaked documents detailing the government’s plan to allow more domestic surveillance, the Australian Federal Police started raiding journalists’ homes.

They started with News Corp. journalist Annika Smethurst’s home. Hours later, police raided broadcaster Ben Fordham’s home. A third raid was broadcast live, as the AFP swarmed ABC’s offices seeking documents that might reveal who leaked sensitive documents to journalists.

Australia’s prime minister, Scott Morrison, had no problem with this cop-based threat to the country’s free speech protections.

Asked if the news troubled him, he said: “It never troubles me that our laws are being upheld.”

The laws aren’t being upheld. That’s the determination of the country’s highest court. In fact, they’re being broken.

News Corp. journalist Annika Smethurst went to the High Court to overturn the warrant that was executed on her Canberra home in June last year and triggered a national campaign for greater press freedom.

The seven judges unanimously agreed that the warrant was invalid, partly because it failed to state the offense suspected with sufficient precision.

Unfortunately, the court didn’t go so far as to uphold protections for journalists that should shield them from law enforcement raids seeking to uncover their sources.

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.

This ruling only raises further questions. If the warrant is invalid, what is this evidence being used for? The charges are unclear, according to this court, but somehow the evidence of… whatever… is still valid and can be used to engage in an investigation, if not a prosecution?

For the moment, the AFP says it won’t be looking at the evidence it took from Smethurst’s home.

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.”

That may be, but that statement doesn’t say anything about any “looking at” that may have been occurred before court proceedings made it potentially unwise to keep sifting through possibly-tainted evidence.

With this still unsettled, this statement — from the head of News Corp. — seems a bit overconfident.

“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.”

Michael Miller is right: Smethurst should not have been targeted — much less raided — for publishing leaked documents. The government’s supposed allegiance to protecting free speech rights should have prevented a journalist from being the subject of a law enforcement investigation. But he’s somewhat wrong about the message the court sent. It did say the warrant was invalid. But it refused to force the AFP to destroy the illegally obtained evidence. That’s not an “indisputable message.” That’s a mess that still needs to be properly sorted out. All it really says is the AFP needs to be a bit more careful crafting warrants before disregarding the protections Australian journalists are supposed to have.

Filed Under: annika smethurst, australia, free press, free speech, journalism, leaks, raiding journalists, warrant
Companies: news corp