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.

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

Australian Federal Police Raid Journalist's Home Over Publication Of Leaked Documents

from the cool-cool-cool dept

The Australian government is using its considerable national security powers to discourage local journalists from reporting unflattering news. Publishing leaked documents will get your home raided by the feds in Australia. (Wait, I'm getting something in my earpiece… it appears this is not just an Australian phenomenon.)

The Australian federal police have raided the home of News Corp Australia journalist Annika Smethurst investigating the publication of a leaked plan to allow government spying on Australians.

On Tuesday police executed a warrant investigating the “alleged publishing of information classified as an official secret” which they said had the potential to undermine Australia’s national security.

Her employer called it a "dangerous act of intimidation," which is exactly what it is. The government may be claiming this is about protecting the nation, but if it has a problem with leakers, it should maybe take a look at its leakers first, rather than punish journalists for engaging in journalism. Or -- and I'm just throwing this out there -- maybe the government shouldn't engage in secret domestic surveillance or other acts that would provoke public outrage if they were exposed.

Unfortunately, Australia really doesn't have a shield law to protect journalists, leaving them only with the dubious option of defending "unauthorized disclosures" as being made in the public interest. Even if nothing comes of this, the message has been sent: publishing leaked documents will bring the heat -- the kind of heat that leaves a chill everywhere it's been.

The Australian government firmly -- and with the force of law -- believes anything it thinks should be secret should stay a secret. Smethurst wasn't the only journalist targeted by the government for reporting on supposed secrets.

Just hours after the Australian Federal Police raided the home of high-profile journalist Annika Smethurst, broadcaster Ben Fordham has revealed he’s also being targeted for his reporting.

The 2GB Drive presenter and Sky News contributor revealed he was the subject of a probe over his story yesterday about six asylum seeker boats attempting to reach Australia.

An hour after his report went to air yesterday, his producer was contacted by an official from the Department of Home Affairs to advise the material was “highly confidential”.

“In other words, we weren’t supposed to know it,” Fordham told listeners today.

Right now, the investigation is the DHA's. But it has already informed Sky News it will likely be turning this over to the federal police as a criminal investigation. That's probably because Fordham has refused to cooperate with the Home Affairs investigation and name his source. I'm sure the AFP feels it can suss out the leak source by doing what it did to the News Corp journalist: raid their home and take all of their electronics.

The Australian government is pretending this is normal. The Prime Minister has refused to offer a coherent comment and the usual things are being said about national security by the agencies involved in these investigations. But the truth of the matter is this is not normal. According to the New York Times' report on the raid, this is the first time in more than ten years the Australian government has gone after a journalist for publishing sensitive documents.

The AFP and DHA want it to appear normal, but it isn't. They know it. And they're counting on this combination of breezy national security platitudes and heavy-handed tactics to discourage further reporting on things the government would rather citizens remained blissfully unaware of.

Filed Under: annika smethurst, australia, ben fordham, chilling effects, journalism, raids, surveillance