Australian Court Says Raid Of Journalist's Home Was Illegal... But Allows Federal Police To Keep The Evidence They Seized
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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: annika smethurst, australia, free press, free speech, journalism, leaks, raiding journalists, warrant
Companies: news corp
Reader Comments
Subscribe: RSS
View by: Time | Thread
The Best Solution for this
Of course, the best solution for this, other than the courts to actually do their job, is to create fake documents that identify multiple incorrect but possible sources. I don't think Australian has laws about creating fake documents for personal amusement.
[ link to this | view in chronology ]
Re: The Best Solution for this
They'd probably do the same thing US LEOs would do and charge you with interfering with an investigation. One of many charges used when there's no real law broken to punish the peon for not knowing his place.
[ link to this | view in chronology ]
Question
What do you call an illegal where you get to keep the proceeds with zero punishment?
Standard practice.
[ link to this | view in chronology ]
Re: Question
....Illegal act....
[ link to this | view in chronology ]
'But really, pretty please don't do that again.'
Court: The searches were absolutely, without question illegal.
Police: And the evidence obtained from them?
Court: Oh you can keep all of that.
Police: So the incentive for us not to engage in illegal searches in the future is...?
Court: Completely nonexistent, yes.
[ link to this | view in chronology ]
Re: 'But really, pretty please don't do that again.'
Maybe they are being allowed to keep the evidence so that it can be used to prosecute the cops who broke the law? That would literally be the only valid reason to keep illegally obtained evidence.
[ link to this | view in chronology ]
Re: Re: 'But really, pretty please don't do that again.'
I'd believe that they're keeping it to feed the department's unicorn long before I'd consider that a viable possibility. No, sadly this is likely yet another case of judges either corrupt or spineless, unwilling to rule against police in any meaningful fashion beyond a light slap on the wrist.
[ link to this | view in chronology ]
Re: 'But really, pretty please don't do that again.'
The evidence must be forcibly quarantined to the Parallel Construction Room. It may also be stored in the We'll Use This To Fuck With You Later Room, if necessary.
[ link to this | view in chronology ]
Guilty But No Punishment
I'm reminded of the Scopes Monkey Trial, where a school teacher was found guilty of teaching evolution, however he was fined a paltry amount, thereby effectively winning the case. In this situation, the Australian court determined that the journalist won, yet was unable to command the desired action: destroy the illegally obtained evidence. This is a travesty. We need to understand that even though the court found in favor of the journalist, that this court is no friend of free speech, or the law.
[ link to this | view in chronology ]
The message
“The High Court ruling sends an indisputable message, "
we can do what we want since you're not part of 'high' society
[ link to this | view in chronology ]
Commissioner Kershaw has created an opening!
Having admitted on the public record that he can do without
those files at the moment and with the court having found
no legitimate investigation, thus no lawful use for the files,
the reporter, her publisher and national representatives of the
Australian press can apply to have the court take custody and
force the AFP to apply for access before touching them again.
That press coalition is then in a position to oppose such an
application in open court, thus discouraging the government from
misusing the files in secret; likely their intent all along.
This also gives Australians more time to pass laws to protect
the press and their legitimate sources.
[ link to this | view in chronology ]
Commissioner Kershaw has created an opening!
Having admitted on the public record that he can do without
those files at the moment and with the court having found that
no legitimate investigation, thus no lawful use for the files,
the reporter, her publisher and national representatives of the
Australian press can apply to have the court take custody and
force the AFP to apply for access before touching them again.
That press coalition is then in a position to oppose such an
application in open court, thus discouraging the government from
misusing the files in secret; likely their intent all along.
This also gives Australians more time to pass laws to protect
the press and their legitimate sources.
[ link to this | view in chronology ]
Now where else have i heard of instances of this sort of thing happening? Oh, yeah! Here in the good ol' US of A!
[ link to this | view in chronology ]
Indisputable Message
Citizens have only those rights that our mutually supportive, fascistic whimsy admits. Further, even if some of us admit the existence of certain right and principles derived from it, that doesn't mean the right won't be allowed to be violated.
Signed: High Court, Prime Minister, Federal Police
tl;dr: In Australia, "rights" doesn't mean what you think it means.
[ link to this | view in chronology ]