In 1762, messengers of King George III broke into the London home of journalist John Entick in search of "seditious papers" - writings critical of the monarchy. Outraged, Entick sued the messengers for trespass. In what would become a landmark civil liberty case, Chief Justice Lord Camden rejected the messengers' defence that their conduct was authorised by the king. "If it is law, it will be found in our books," he held. "If it is not to be found there, it is not law." In other words: the government cannot break down the doors of its citizens without precise legal authorisation.
More than 250 years later, last June, the Australian Federal Police (AFP) arrived at News Corp journalist Annika Smethurst's front door. They raided her Canberra home and took documents and data relating to her reporting on intelligence matters. Smethurst and News Corp promptly sued, and today the High Court delivered a judgment invalidating the AFP's search warrant. History repeats.
But Smethurst v Commissioner of Police will not be remembered as the Entick v Carrington of our time. By deciding the case on narrow legal grounds, overlooking broader press freedom concerns and refusing to prevent the AFP from using the material it took, the High Court has handed Smethurst a pyrrhic victory. Australia's robust democracy is at risk of degradation by a thousand cuts, and Wednesday's decision is yet another troubling development.
This may seem like legal semantics, but the majority's position raises serious civil liberty concerns.
Across 115 pages, the court's seven judges were in firm agreement about one thing: the AFP erred badly. It has long been the law that search warrants must specify with particularity the potential criminal offence to which they relate - police cannot go on fishing expeditions. Yet the AFP's warrant was drafted in broad and ambiguous terms.
The High Court was scathing: according to Chief Justice Susan Kiefel and Justices Virginia Bell and Patrick Keane, the warrant "not only fails to identify any offence arising under [the relevant legislation], it substantially misstates the nature of an offence arising under it". For this reason alone, the court unanimously agreed, the AFP's warrant was invalid, and the raid lacked legal authorisation.
Having reached this conclusion, the judges decided not to consider the broader question of whether Australia's constitution might restrain the government from prosecuting journalists because of their reporting. The AFP warrant was issued on the basis of possible breaches of official secrecy provisions in the Crimes Act; before the High Court, News Corp had argued that these offences were unconstitutional for contravening the freedom of political communication. That implied protection is intended to defend Australian democracy by ensuring the free flow of information. The ABC had made similar claims in relation to the AFP's raid on its Sydney office. In February, the Federal Court rejected those arguments.
By sidestepping this important free speech question, the High Court leaves Australia's journalists in the lurch. The chilling effect will be significant. On one hand, this element of the judgment is unsurprising - the court frequently avoids constitutional issues when it can determine disputes on narrower grounds. It is also true that the issue is somewhat academic (other than to Smethurst), as the relevant section of the Crimes Act has since been reformed - albeit made even more draconian, with higher penalties and wider application.
But symbolism matters. Smethurst must be set against an alarming wider context: the government's silencing of public servants, its prosecution of whistleblowers (including Bernard Collaery and Witness K) in court rooms blanketed with secrecy, and a growing disregard for freedom of information laws. Australia is becoming an opaque state. The High Court had a prime opportunity to defend press freedom in Australia and sound a note of caution about the government's overzealous use of secrecy. It declined to do so.
Having agreed that the AFP's raid was illegal, the High Court split about what this meant. Smethurst sought an injunction to secure the return of the materials taken and prevent their use by the AFP, including in possible criminal proceedings against her or her source. A majority - Kiefel, Bell and Keane in a joint judgment, Justice Geoffrey Nettle agreeing - refused to grant that relief. The majority queried whether they had the constitutional power to issue such an order, and held that even if they did, discretionary factors including the possibility of a prosecution weighed against doing so.
This may seem like legal semantics, but the majority's position raises serious civil liberty concerns. The High Court has effectively said that officers of the federal government can act illegally, and affected members of the public will have no judicial recourse (beyond, perhaps, monetary compensation - hardly helpful in Smethurst's case). This finding would be alarming in any context, but it is particularly concerning in the context of the press. As Justice Stephen Gageler observed in his reasons, there is an important link "between protection of personal property and protection of freedom of thought and political expression".
Entick v Carrington was not a traditional press freedom case, but it acted as a bulwark against state intimation of the media during a fraught period in British politics. As Oxford professor Jacob Rowbottom has written, the case "is as much about an ideal of press freedom as it is about the rule of law". Defenders of the High Court may point to Australia's lack of explicit constitutional protections for free speech or free press and suggest that the appropriate forum for such concerns is found elsewhere. But Britain also lacked a First Amendment equivalent in 1762, and still does today. That did not prevent Lord Camden from playing his part in the protection of the press.
Only a minority of the High Court followed in Camden's footsteps. Justices Gageler, Michelle Gordon and James Edelman each said that they would require the AFP to return Smethurst's data and destroy any copies. Gageler's words are particularly damning of the majority. "The principles of constitutional liberty and security carried forward from Entick v Carrington are part of our common law inheritance," the former federal solicitor-general wrote. "We ignore them - or, worse, devalue them - at our peril."
- Kieran Pender is a visiting fellow at the ANU's Centre for International and Public Law.