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. Continue reading →