Police will hold on to information seized during a raid on a journalist’s home despite the High Court finding their search warrant was invalid.
And there are still grave fears for press freedom in Australia even though the court handed a partial win to reporter Annika Smethurst.
The News Corp Australia staffer’s Canberra apartment was raided in 2019 over stories she wrote revealing secret plans to expand the government’s spying powers.
The full bench of the High Court on Wednesday found the search warrant wasn’t drafted precisely enough and should be quashed.
But the judges were torn on whether the Australian Federal Police should have to destroy material seized during the search.
Two justices argued the police should have to destroy the data and therefore not use it.
But the majority disagreed, saying the data could disclose criminal conduct and no specific right would be protected by doing so.
AFP Commissioner Reece Kershaw says the force will get legal advice on what to do with the data.
“At this moment it’s quarantined, investigators are not able to look at that,” he said.
News Corp is calling for the government to walk away from the case, saying Australians should be concerned that a journalist’s home could be illegally raided.
“Annika Smethurst should not be prosecuted for simply doing her job as a journalist to rightly inform Australians on serious matters of public interest,” the media company’s executive chairman Michael Miller said.
“It’s time for the federal government to bring this sorry mess to a prompt end. It’s time to end Annika’s ordeal.”
Shadow attorney-general Mark Dreyfus is concerned police could use the data down the track.
“That’s something the government can now put to rest. It should rule out prosecution of Ms Smethurst or any other journalist for simply doing their job,” he said in Melbourne.
“Labor believes the Australian public does have a right to know about the activities of government.”
Mr Dreyfus has called for stronger whistleblower protections, more enforcement of Freedom of Information laws and changes to the defamation system.
The court did not consider whether the raid infringed on implied freedom of political communication.
The AFP has been ordered to pay court costs.
The media union has welcomed the decision but is concerned the police don’t have to destroy the data as the court didn’t find there was a right needing protection.
“Starkly read, this means there is no protection for public-interest journalism in Australia.”
In April 2018, Smethurst published three stories about a proposal to allow the Australian Signals Directorate to spy on citizens without a warrant.
The matter was immediately referred to the AFP and officers eventually raided her home on June 4 last year.
Smethurst was forced to reveal her phone security code before police copied information from the device to a USB.
It is not known what data is stored on the USB.