By Jason N E Varuhas, Professor of Law, Melbourne Law School

In Smethurst v Commissioner of Police [2020] HCA 14 the High Court of Australia had to decide whether data obtained by police through an unlawful search of journalist Ms Annika Smethurst’s home should be returned to her or destroyed. In a controversial decision, which split the Court 4:3, the High Court refused to order the police to return or destroy the data.

The case poses difficult questions of law that arise at the intersection of tort, equity and constitutional law. Specifically, it raises questions over the extent to which the ‘ordinary’ rules governing the grant of injunctions, which apply in litigation between ordinary citizens, should be applied in a case between a citizen and government where the injunction is sought pursuant to the Constitution.

Setting the scene

Smethurst is a journalist who works for Nationwide News Pty Ltd, which publishes the Sunday Telegraph newspaper. She had published articles in that newspaper informing readers of proposed legislative changes which would give the Commonwealth government wider powers of surveillance. These stories included an image of the top of a document which was marked as a secret government document.

The Federal Police began an investigation, as publication of the document may have breached provisions of the Crimes Act 1914 (Cth). Warrants were obtained to search the plaintiff’s premises and motor vehicle. In the course of searching the plaintiff’s premises the police downloaded material from her phone onto a USB stick which officers had brought with them.

In Smethurst the High Court unanimously held the search warrants unlawful as they breached statutory requirements. Principally, the warrants did not properly state the offence in regard of which the warrants were given. Because the warrants were unlawful and invalid the police actions of entering the plaintiff’s premises and searching her phone lacked lawful authority, and thus constituted the torts of trespass to land and trespass to goods.

The main issue for the High Court, other than the validity of the warrants, was what remedy should be given in response to the unlawful infringement of the plaintiff’s property rights. The plaintiff did not seek damages, but it was clear that if claimed damages could have been awarded for the trespasses to vindicate the plaintiff’s possessory rights in her land and goods. A writ of certiorari was granted, which has the effect of invalidating the warrants.

But the main issue in relation to remedies was whether an injunction could be granted compelling the return of the information on the USB stick (that is, the information unlawfully obtained by the police from the plaintiff’s phone.) By a majority (Kiefel CJ, Bell, Keane, Nettle JJ; Gageler, Gordon, Edelman JJ dissenting) the High Court refused the injunction, so that the police were able to retain the information they had obtained through their unlawful and wrongful acts.

The remedy of injunction: general principles

Injunctions had been sought by the plaintiff both in equity and under section 75(v) of the Constitution. In this post I will focus on the s 75(v) injunction, which I will refer to as the ‘constitutional injunction’.

The injunction is an equitable remedy, which has been ‘co-opted’ into the constitutional framework. A core theme of the judgments is the extent to which the various Justices consider the principles governing grant of the constitutional injunction should or should not differ from the principles that apply to grant of injunctions in the ordinary law of equity. To that end it is necessary to provide a brief recap of the ordinary principles applying to grant of injunctions.

First, the injunction is a discretionary remedy, albeit the exercise of discretion is disciplined by an elaborate body of principles that have been developed over the centuries.

Second, there are three stages of analysis in deciding whether to grant an injunction:

1. Juridical basis — for a court to grant an injunction the plaintiff must show that some legally-protected right or interest, or statutory requirement has been or will be breached by the defendant’s acts. There can be no injunction ‘in the air’.
2. Inadequacy of damages — before an injunction can be granted in aid of common law rights, such as possessory rights in land or goods, the plaintiff must show that common law remedies are inadequate. The principle reflects a traditional remedial hierarchy whereby common law remedies (principally, damages) should be afforded primacy in protection of common law rights, with equitable remedies, such as injunctions, only coming to the aid of common law rights where common law remedies would be inadequate.
3. Discretionary bars — even if a plaintiff can show a juridical basis, and that remedies at law are inadequate, the court may still refuse injunctive relief in its discretion. Contrary to how equity is sometimes portrayed the remedial discretion is not an open-ended free for all but rather there are recognised, narrow bases for refusing relief which are governed by well-known principles.

Broadly-speaking all of the Justices in Smethurst considered this general three-point framework applies to the constitutional injunction. However, some — principally Justices in the minority — considered that the constitutional setting should significantly shape how these principles are to be applied. As I will discuss, the different positions adopted on this point can be shown to reflect different strands of thinking about private rights, remedies and public power in the common law tradition, and specifically different strands of thought associated with British jurist A. V. Dicey (see in particular chapter IV of his Introduction to the Study of the Law of the Constitution, 8th ed (London: MacMillan, 1915).

Was there a basis for granting an injunction?

The majority

In Smethurst there were two possible juridical bases that might ground an injunction: breach of the plaintiff’s private property rights by the police, or public law unlawfulness on the part of the police.

There were problems with each.

In the ordinary law of equity injunctions are generally only given for an anticipated breach or ongoing breach, outside of a number of exceptional circumstances. Here the trespass upon Smethurst’s property rights in her home and goods (specifically, her phone) ended when the police had completed their initial search. In continuing to retain the information downloaded from Smethurst’s phone following the search, the police were not committing a continuing tort as unusually the plaintiff did not have a proprietary right or interest in the information. Contrast a situation where a thief takes your car and drives it around as if it were his own — there is an ongoing tort because you have a proprietary title in the car. Similarly while the officers’ acts in entering the plaintiff’s home were unlawful in a public law sense that unlawfulness had come to an end, and it could not be said the police were acting unlawfully or otherwise exceeding their powers in continuing to retain information obtained through that search.

For the majority these points were sufficient to dispose of the issue. Here I focus principally on the plurality judgment of Kiefel CJ, Bell and Keane JJ. The plurality affirmed there is generally no injunction to reverse the consequences of a breach of a private right or public law unlawfulness where there is no ongoing wrong or unlawfulness. On their view of ordinary equitable principles, if the officers had for example acted egregiously that might make the case exceptional and provide a basis for ordering return of the information, but here officers acted with an honest belief in the legality of their acts. If the tort was complete but the police’s holding of the information was causing ongoing ‘extreme’ loss or damage that could exceptionally provide a basis for granting an injunction, but Smethurst was not suffering ongoing loss or damage, as those concepts are conceptualised in law. The plurality observed that if there were a recognised right to privacy in Australian law that might have provided a juridical basis for an injunction here, but this was not a question to which the plaintiff had sought an answer. This is a question to which the High Court will surely return in future, Australia now being the only major common law country not to have authoritatively recognised a common law right to privacy.

Overall, the plurality, while acknowledging the constitutional context of the s 75(v) injunction, generally considered the principles governing such constitutional injunctions would be similar to those applied in the ordinary law of equity. The plurality judgment asserts: ‘The remedy of injunction under s 75(v) remains essentially an equitable type of remedy’ (at [98]). Nettle J, also in the majority, was of a similar view.

While the majority Justices did not attempt to rationalise their approach in any detail, the approach adopted is suggestive of the Diceyan ideal of equality in the sense that the public law context is not considered distinctive: the same ordinary principles ought to apply to public officers as they do to ordinary citizens. There is nothing ‘special’ about the state.

The Diceyan equality principle is one that typically regulates the application of ordinary private law norms to public defendants. But it seems somewhat remarkable not to find in the majority judgments any serious consideration of whether this is the correct approach when private law norms are being filtered through a constitutional jurisdiction. One might have expected at least some consideration of whether the constitutional context should make a difference, and an explanation of why or why not. Yet the majority judgments are distinctly devoid of any such normative inquiry, so that the normative basis on which their analysis proceeds is unarticulated and obscure.

Indeed, putting the constitutional setting to the side, even on ordinary principles the majority’s approach is open to question as adopting an overly narrow or restrictive understanding of the bases on which an injunction may be given, and there were authorities before the Court that supported a broader understanding (see discussion of Edelman J’s judgment below). Further, where there is a genuine dispute as to a legal question, such as the juridical basis for exercising the power to grant an injunction, one would expect some consideration of how fundamental legal principles, such as the rule of law, might bear on resolution of the disputed question of law, especially in a case concerning unlawful invasion of basic rights by government. Yet the majority judgments are notable for the distinct absence of any serious consideration of fundamental principles.

The minority

In contrast to the majority the three minority judges considered there was a juridical basis for granting an injunction but they reached that conclusion in different ways. Their approaches reflect differing views of the nature of the constitutional injunction and whether it is distinct.

First, Justice Edelman was highly sceptical of adopting a distinctive approach to the constitutional injunction, considering this could be a license for a free-wheeling approach to its grant. Thus in common with the majority Justice Edelman’s general view of the interrelationship between the constitutional injunction and the ordinary law was one of confluence. But in contrast to the majority he stressed that equitable principles were themselves in a state of development and he ultimately found authority in ordinary equitable principles for granting an injunction to ameliorate the consequences of a completed trespass. Specifically, where ongoing consequences of a wrong for the plaintiff could not be adequately redressed by damages, and the injunction would not seriously interfere with the defendant’s liberty. He would have granted an injunction on this basis: damages for trespass could not adequately address the fact that the police continued to hold Smethurst’s private information, and the injunction could be framed so as not to unduly infringe upon the interests of the police (see further below).

In terms of his more general views on the constitutional injunction, Justice Edelman’s concern not to license an undisciplined judicial approach through appeals to the exceptionality of public law is a legitimate one, and it is unlikely anyone would dispute his argument that s 75(v) does not provide a mandate to completely disregard equitable principles. But could an approach which takes equitable principles as a starting point, and incrementally develops those principles in light of the constitutional setting, not provide a workable and sufficiently disciplined middle path?

In contrast to the majority and Justice Edelman, Justices Gageler and Gordon saw the constitutional injunction as meaningfully distinct from ordinary injunctions, but each took a different view of that distinctiveness. These judgments are notable for their transparent articulation of, and rationalisation, of normative starting points. The judgments start from a clear account of what the law is seeking to achieve in this area, and as such the analysis that follows is normatively grounded, coherent and has a clear sense of direction. One may agree or disagree with the judgments, but the premises that underpin the conclusions reached are clear and reasoned.

Turning first to Justice Gageler. In a rousing judgment, Justice Gageler started with the principles of the rule of law which form an assumption underlying the Constitution, including that officers cannot do anything other than what they are authorised to do under the Constitution and statute, and they are bound by the common law unless excused explicitly by statute.

For him the original invasion of the plaintiff’s basic common law rights in land and goods through the unlawful search provided the juridical basis for granting an injunction to reverse the ongoing consequences of those wrongs, namely the continued police retention of the phone data. Such an order would achieve what damages could not: it would place the plaintiff in the position as if the wrong had never occurred. He doubted whether even an ordinary citizen should be permitted to keep the fruits of their wrong, but he emphasised that whatever the position between citizens, the constitutional dimension of the trespass here and the constitutional nature of the remedial jurisdiction invoked reinforced that relief should be given. He said there is every reason not to be reticent about exercising that remedial jurisdiction under s 75(v).

Interestingly, in reinforcing the constitutional dimensions of the case, he drew heavily on the common law’s constitutional tradition in cases involving torts by public officers that stretches back to cases such as Entick v Carrington. He said the principles of constitutional liberty and security carried forward in those cases form part of Australia’s common law inheritance and are ignored or devalued at our peril. And he said talk of fundamental common law rights, such as those in property, must be backed up with concrete remedies.

Thus while he starts with an emphasis on the written constitution, his approach is one deeply rooted in common law tradition, specifically the idea of the common law as a repository of basic individual rights; that officials may only trespass upon those rights where backed by clear statutory authority; and that infringements of rights must sound in effective remedies lest basic rights become meaningless rhetoric: ubi ius, ibi remedium (where there is a right there is a remedy). These common law precepts in turn shaped Justice Gageler’s conception of the constitutional jurisdiction to grant an injunction.

One way to explain Justice Gageler’s approach, in contradistinction to the majority, is that while the majority simply apply the same formal doctrines that apply to injunctions in ordinary law, Justice Gageler’s judgment looks past the Diceyan equality principle to the reason for that principle – which is to vouchsafe freedom in the face of official overreach through provision of powerful remedies – and it is that reason that animates his approach to the constitutional jurisdiction.

In this light perhaps Justice Gageler’s approach does not treat the constitutional jurisdiction as distinct as first appears, given there is clear confluence between his approach to that jurisdiction and traditions he identifies as embedded in general law. One way of thinking about this is that if an applicant sought an ‘ordinary’ (non-constitutional) injunction against government on facts analogous to Smethurst, nearly all of Gageler J’s arguments would have traction as they are based in the traditions of the common law.

I note that a critic may question high-sounding appeals to cases such as Entick given a legislative regime governing warrants which has continually shifted to give ever greater primacy to the needs of the criminal justice system, and made ever-greater inroads into individual freedom (see eg Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177 at [26]). But the creeping incursion upon private rights only reinforces that where basic rights are invaded by police in a way that exceeds even the extremely broad powers conferred by the Crimes Act, courts must, as Gageler J’s judgment suggests, stand ready to meet such conduct with a strong remedial response. Otherwise appeals to the common law’s historical protection of ancient liberties really will ring hollow.

The third dissentient, Justice Gordon, also emphasised the distinctive nature of the constitutional jurisdiction. But her starting point might be described as ‘anti-Diceyan’; she started from the proposition that in public law things are done differently from the way they are done in ordinary law. Recall that the idea of a distinctive public law is what Dicey was fundamentally opposed to. But contrary to Dicey’s concern that a separate public law would lead to special exceptions for government, Justice Gordon’s emphasis on the special character of public law ultimately led to an approach strongly committed to government under law.

Thus, Justice Gordon considered that the courts in exercising their jurisdiction under s 75 were acting in a distinctive context, should not be hamstrung by equitable principles, and that an undue focus on equitable principles, and mechanical transposition of those principles into the constitutional context, could ultimately undermine the distinctive purposes of the constitutional jurisdiction.

For Justice Gordon the juridical basis for granting the injunction was the original public law illegality perpetrated by the police, in conducting a search on the basis of invalid warrants. For her the leitmotif of the constitutional jurisdiction is legality. Requiring the police to return information obtained through their unlawful acts vindicates the importance of officers acting according to law. A corollary of this emphasis on legality was that Justice Gordon de-emphasised the necessity or importance of private law rights in grounding the constitutional jurisdiction to grant an injunction. One might observe that this focus on legality is entirely consistent with the general theme of Australian administrative law over the last twenty years — a major field of public law.

Justice Gordon’s move away from a discourse of private rights was also informed by a more general contextual point: that with the rise of the internet and big data, it might often be the case that we lack legal rights in data that is nonetheless important to us and affects our interests — as was the case in Smethurst. Justice Gageler also made observations regarding the need to adapt the law to the changes brought about by digital technology, so as to ensure the law’s continued effectiveness.

Were there other reasons not to grant an injunction?

Even if one shows a juridical basis for an injunction and demonstrates that common law remedies are inadequate, the court may still refuse an injunction on established discretionary grounds. These include familiar grounds such as delay and unclean hands, for example. All of the Justices accepted that discretionary bars are in principle applicable to the constitutional injunction.

The main bar implicated in Smethurst was prejudice to the public interest. In other words the defendant argued that even if the other criteria for grant of an injunction were established the injunction should nonetheless be denied in the court’s discretion because to grant the remedy would prejudice the public interest.

Ordinarily mere assertions of prejudice to the public interest are not sufficient to bar relief. Usually there needs to be significant prejudice, especially where rights in land are the juridical basis of relief, and one ordinarily expects some evidence to be put forward in support of such an argument — otherwise any public defendant could escape injunctive relief by an amorphous appeal to the common good. More generally Australian courts in particular have traditionally been more reticent about appeals to the public interest than courts in other jurisdictions, specifically England. No doubt this reticence lies in well-founded separation of powers concerns, and concerns over watering down ancient rights and liberties in the face of government interference.

However, the plurality in Smethurst accepted the defendant’s assertions of the public interest at face value, so even if they had located a juridical basis for granting the injunction they would have denied the relief in their discretion. The particular public interest relied on was that in the investigation and prosecution of crimes. In this regard it was sufficient in the plurality’s view that the information obtained by the police might possibly be used in a future prosecution. This was the case even though there was no evidence admitted by police that a prosecution was likely or even being contemplated, or indeed that the copied information provided evidence of any crime.

As it happens we have learned, subsequent to the High Court’s decision, that there will be no prosecution. The police have said the data has been destroyed. But the important point is that the police were left with information obtained through unlawful acts, and which will not ultimately be put to use in the public interest. It is hard to rationalise this outcome. One might respond that this critique is made with the benefit of hindsight. But there was no evidence before the Court which showed the police intended to use the information for a prosecution or that it even disclosed a crime. In turn this reinforces the importance of an evidential foundation to support what might otherwise be bare assertions of public interest.

The contrasting approach of minority Justices is normatively preferable, and congruent with the general approach in equity. The minority judgments emphasise that the onus of making out an argument based on the public interest lies with the defendant and that there must be some evidential foundation to support the appeal to the public interest: ‘A principle of public interest is not established by speculation’ (at [278] per Edelman J).

The minority Justices observed that if there was, for example, evidence of a prosecution on the horizon or evidence that if the data was returned it would be destroyed or permanently lost those considerations would change the calculus; but that was not the case here.

Furthermore the great advantage of an injunction is that it can be granted on terms; the minority Justices would have drafted their orders in such a way that should the police wish to pursue a valid warrant to obtain the data, they could do so. For example, Justices Gageler and Gordon would have drafted the orders so that as soon as the data was returned to the plaintiff it could be obtained again lawfully by the police, if they were able to obtain a warrant. In this way the police would have to act lawfully to obtain the data, so that the plaintiff’s rights and the rule of law are vindicated — and there would be no possibility of prejudice to public interests in policing crime.

In the author’s respectful view the approach of the minority Justices to the public interest factor is more in line with prior authority, and normatively desirable, especially where one is contemplating a constitutional remedy to address unlawful invasion of basic rights by official actors. Many will consider the majority’s approach as being far too willing to accept the defendant’s assertions of the public interest, absent any evidence of the prospects of a prosecution. It is unclear and unexplained why the majority did not consider that an injunction on terms, of the sort favoured by minority Justices, would not adequately protect the public interest. But this approach is of a piece with a more general trend across the common law world of courts more easily than in the past sacrificing basic common law rights where they rub up against the public interest, albeit this trend has to date been less evident in Australia than elsewhere (see JNE Varuhas, ‘The Socialisation of Private Law’ (2021) 137 Law Quarterly Review (forthcoming)).

Final Thoughts

Overall we see in the different judgments different views of the implications of a remedy given in a constitutional jurisdiction. For some such as Justice Gageler, in the constitutional setting the courts should feel a heightened responsibility to protect basic rights in the face of unlawful official action. For Justice Gordon the constitutional context suggests a strong focus on vindicating the normative importance of legality in the public sphere. For others the constitutional dimension makes little difference.

Whatever view one prefers, what seems clear is that it is not possible for the courts to develop the law coherently and rigorously without first having an understanding of what the constitutional injunction is for.

AGLC4 Citation: Jason Varuhas, ‘Is the Constitutional Injunction ‘Ordinary’? Smethurst v Commissioner of Police‘ on Opinions on High (27 July 2020) <https://blogs.unimelb.edu.au/opinionsonhigh/2020/07/27/varuhas-smethurst/>.

Jason N E Varuhas is Professor of Law at Melbourne Law School.

My thanks to Professor Mark Aronson, Professor Cheryl Saunders and Dr P.G. Turner for helpful comments on a draft.

I am also grateful to participants at a Melbourne Law School CCCS Seminar for a stimulating discussion of the Smethurst case.