High Court weighs up confidentiality, privacy, and public interest considerations in refusing order for destruction of material seized under warrant.

In Smethurst v Commissioner [2020] HCA 14, the High Court considered the validity of a search warrant under which material was taken from News Corp journalist Annika Smethurst during a search of her home, and, if invalid, whether an order should be made for the destruction of the documents. Ms Smethurst was successful in establishing that the warrant was invalid, but not in obtaining an order for the destruction of the documents.

On the question of the destruction of the documents, the Court split 4:3 in favour of permitting the AFP to retain the documents seized for the purposes of its investigation. The case raised various questions relating to confidentiality and privacy of information, and the public interest associated with the investigation of possible crimes.

The warrant is found to be invalid

In a joint decision, Kiefel CJ, Bell and Keane JJ explained that the terms of the warrant were not consistent with the requirement that a warrant state the particular offence to which it relates. The warrant had sought to summarise the offence in question, but in doing so both failed to state the nature of the offence, and ‘succeeded in misstating it’ (at [43]).

The need for a warrant to state the offence to which it relates has its history in the law’s refusal to accept ‘general warrants’ that confer a ‘free-ranging power of search’ (at [22]). The requirement now has a statutory basis in the Crimes Act 1914 (Cth) (the Crimes Act). The ‘protective purpose’ of the requirement, their Honours explained, is achieved ‘by ensuring that each of the issuing officer, the officer executing the warrant and the persons affected by the warrant understand what is the object of the search and the limits to it’ (at [27]).

In the case of the warrant for the search of Ms Smethurst’s home, their Honours said (at [43]):

Those reading the warrant were not only uninformed about any offence under s 79(3) [of the Crimes Act], they were misinformed that the offence concerned the provision of a document to another person which was somehow said not to be in the interest of the Commonwealth.

That meant that ‘[i]t is not immediately apparent how [Ms Smethurst] and the executing officer were to understand the boundaries of the search …. It made the authorisation for the search appear impossibly wide’ (at [43]).
The remaining members of the Court (Gageler, Nettle, Gordon, and Edelman JJ) each delivered separate judgments, but agreed with the plurality that the search warrant was invalid.

Why did the Court not require the destruction of the seized material?

The question that split the Court was in relation to the injunction sought by Ms Smethurst that would have required that the AFP either destroy or deliver up the information taken from her mobile phone, or restrain the AFP from making the information available to the prosecutor.

Justices Gageler, Gordon, and Edelman would have granted the injunction sought by Ms Smethurst, but would have framed the injunction in a way that would have allowed the AFP to attempt to obtain a lawful warrant to allow them to retain the seized information.

At issue was confidentiality, privacy, infringement of common law rights by trespass, public interest considerations relating to the administration of justice and investigation of a possible crime, and the scope of the Court’s jurisdiction to grant an injunction.

The Court did not determine whether there is a common law right to privacy

First, for those interested in the possible recognition of a common law right to privacy, or a tort for invasion of privacy, Ms Smethurst did not seek to claim such a right or the existence of such a tort (at [48]). The Court, therefore, did not delve into the question left open by Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. There were hints, however, that this is an issue that the Court would be interested in returning to in the future (see, for instance, [86] – [90]).

Seized material is not confidential information recognised by the law

Neither did Ms Smethurst claim that the information seized was in the nature of confidential information that would of itself support the grant of an injunction on equitable grounds. Although the information may have been confidential in the sense that it could not be readily accessed by anyone else, it was not claimed to be information that was ‘improperly or surreptitiously obtained’ (at [47]). (Elsewhere, it has been said that equity will also restrain the publication of information that has the ‘necessary quality of confidentiality’—in that it is not common or public knowledge—was received in circumstances to import an obligation of confidence, and there is actual or threatened misuse of the information (see Smith Kline & French Laboratories (Aust) Limited v Secretary, Department of Community Services and Health (1990) 22 FCR 73, at 87).)

Should the injunction be issued to respond to the trespass committed by the AFP?

The claim for the injunction was instead sought to protect against the effects of the trespass committed against Ms Smethurst.

Keifel CJ, Bell and Keane JJ did not agree that the injunction was able to issue on those grounds, largely because, in their view, Ms Smethurst had not suffered damage by the taking of the information (despite acknowledging it may have serious consequences for her) (at [72]). It is not possible, they said, ‘to regard the prospect that one may be investigated for an offence as injury’ (at [73]). Ultimately, they found that Ms Smethurst could point to ‘no authority which recognises their interest in not being investigated in relation to an offence as a right’ (at [85]).

Even if the grant of an injunction could be made, their Honours took the view that it should not. They said that the public interest in both the investigation and the prosecution of crime meant that the grant of the injunction was not appropriate, and the prospect that criminal conduct may be disclosed was a sufficient reason to decline the relief Ms Smethurst sought (at [104]).

Their Honours also noted that there is no presumption in law that information unlawfully obtained cannot be used in the investigation or prosecution of an offence. There is instead, a public interest in bringing persons to conviction, and this is to be weighed by a court against approving unlawful conduct (at [65]). Their Honours appear to have taken the view that the appropriate time for that weighing exercise is at the point that the information obtained in reliance upon the unlawful warrant is sought to be used in any proceedings against Ms Smethurst for the prosecution of an offence.

On the other hand, Gageler J found that the trespass committed by the AFP, the ‘serious and ongoing’ effect as long as the information remains in the hands of the AFP (at [122]), and the need to restore Ms Smethurst to the position she would have been in if her common law rights had ‘not been invaded by the tortious conduct of the AFP’ (at [130]), provided the basis for an injunction to be granted. And, in the circumstances, the AFP could not establish that the discretion should be exercised to refuse the injunction (at [134] – [138]).

Similarly, Edelman J saw trespass, and the ‘ongoing and very serious’ damage caused by the trespass, as the basis for the issue of an injunction to require that the seized material be delivered up to Ms Smethurst (see [246], [251] and [252]). However, in deciding that the injunction should be given, his Honour also weighed up the fact that the information seized from Ms Smethurst was private information, and because it was not seized under a lawful warrant, it was not subject to the protections that would have applied under the Crimes Act (at [263]).

Should injunction be available to protect against excess of power?

Justice Gordon saw a different basis for the grant of an injunction, and one that was not reliant upon establishing a freestanding right on the part of Ms Smethurst to have the seized material destroyed. It was not necessary, therefore, in her Honour’s view for Ms Smethurst to rely upon trespass as a basis to be granted the injunction. Instead, the grant of the injunction was founded on the principle that officers of the Commonwealth must obey the law, and there needs to be effective remedies when they exceed their powers (at [169]; also see [176], [179], [183], [185], and [187]).

This approach to the availability of injunction as a remedy would expand the role of s.75(v) of the Constitution. Justice Gordon summarised the approach by stating that, the constitutional purpose of s.75(v) (and Part IV of the Judiciary Act 1903 (Cth)) point to the High Court having the power to ‘grant all such remedies … as will not only prevent excess of federal power but will also, when federal power has been exceeded, restore the parties affected, so far as possible, to the position in which they would have been had power not been exceeded’ (at [182]). Hence, in her Honour’s view, the grant of an injunction is not limited to where it is necessary to prevent the implementation of invalid exercises of power (compare Kiefel CJ, Bell and Keane J at [96]), and it was not necessary to identify (as Gageler and Edelman JJ did) a legal right that has been infringed.

Takeaways

• Courts will carefully scrutinise exercises of powers that permit intrusion into a person’s private affairs.
• However, the law also recognises competing public interest considerations.
• In this case, it was the failure to comply with the protective requirements of the Crimes Act that caused the search warrant to be invalid, rather than the nature of the information that was seized.
• The Court also recognised that there is a public interest in allowing information obtained without authority to be used in the investigation and prosecution of an offence.
• The law does not recognise all privately held information to be confidential.
• Although it was not called on in this case to consider the existence of a common law right to privacy, the High Court has shown an interest in addressing this issue in the future.

Read the decision

The decision can be accessed here.

This article was written by Will Sharpe, Partner.