Smethurst v Commissioner of Police (AFP)  HCA 14 is an important decision in relation to search warrants; however not for the reason many would have hoped or expected.
Ms Smethurst is a journalist. The Australian Federal Police obtained a search warrant under the Crimes Act 1914 (Cth) from a Magistrate. The AFP then executed that search warrant at Ms Smethurst’s house and made a digital copy of some of the data on her mobile phone.
Ms Smethurst and her employer brought proceedings in the High Court (in its original jurisdiction) to have the search warrant quashed.
One of the grounds upon which they sought to have the search warrant quashed was that the relevant offence identified in the search warrant was constitutionally invalid (for infringing the implied freedom of political communication). None of the 7 judges who considered the case found it necessary to rule on this issue. For this reason journalists may not find the decision particularly helpful or even interesting.
However the case has important ramifications for a wide range of people other than journalists who may be subjected to federal search warrants.
The High Court found the Crimes Act search warrant in this case is invalid
It is important to understand that the criminal offence relied upon for the issue of the search warrant was a provision in the which is seldom used and has since been repealed.
I don’t propose to go into detail about why the court found the warrant was invalid. There was largely agreement on this question from the Judges. Courts are insistent upon strict compliance with the statutory conditions for the issuing search warrants. 1 It suffices to refer to the following passages of the joint reasons of Kiefel CJ, Bell and Keane JJ (“the plurality”):
 Each of the issuing [Magistrate], the [AFP] officer executing the warrant and the persons affected by the warrant need to understand what is the object of the search and the limits to it. … this can only be achieved by the nature of the offence the object of the warrant being stated on the face of the warrant, in a way which is both intelligible and sufficient to convey what those concerned with or affected by the warrant need to understand.
 It is not necessary that the warrant state the offence with the same precision and specificity as is required for an indictment. The purpose of a warrant is not to define the issues for trial.
 –  deals with the specific defects in the Smethurst warrant.
 the requirement that the offence to which the warrant relates be stated in the warrant is not satisfied by the provision of information falling short of such a statement but which might enable a person reading the warrant to deduce or infer what offence is intended.
Appropriate remedy for Ms Smethurst
At  the plurality observed: As the Second Warrant is invalid it is liable to be quashed by an order for certiorari. The question then is whether [Ms Smethhurst and her employer] are entitled to the injunctive relief that they seek.
Nettle J agreed with the plurality in holding that an injunction should not be granted. Thus the AFP has been permitted to keep the copy of the data they took from Ms Smethurst’s phone, even though it was taken under an invalid warrant.
Gageler, Gordon and Edelman JJ (each in separate decisions) would have granted an injunction requiring the return of the data and the destruction of any copies of it. But their Honour’s reasoning differed.
Gordon J would have granted an injunction under s75(v) of the Constitution. Her Honour observed:
an injunction under s 75(v) of the Constitution, in aid of certiorari, should issue against the Commissioner of Police to restore Ms Smethurst to the position she would have been in but for the officer of the Commonwealth acting unlawfully, in excess of power. 2
Gageler J agreed that s75(v) provided a basis for the injunction. 3 At  his Honour said: an injunction can issue in the exercise of judicial discretion to vindicate the limitation on constitutional or statutory authority.
Edelman J 4, like the plurality, disagreed with Gordon and Gageler JJ that there was a constitutional remedy under s75(v). However Edelman J indicated that he would have granted an injunction upon an equitable footing. His Honour said:
At : The central rationale for a mandatory injunction in cases where there is no anticipated or continuing unlawful action is that the interference with the liberty of the defendant by ordering the defendant to take action where inaction would be lawful is justified by the extent of the inadequacy of damages to ameliorate the consequences of the wrongdoing.
And at : … independently of any development of the law concerning private information, Ms Smethurst does have an interest in resisting the potential dissemination of private information contained on her mobile phone which has not been lawfully obtained. In an appropriate case, the strength of that interest will establish that damages are inadequate. The question is whether this case is such an appropriate case. I have not found this question easy. The reasons of Nettle J concerning the limited use to which the Australian Federal Police are likely to put the information in the performance of their functions present a powerful case for a conclusion that damages would be adequate. Ultimately, however, I have concluded that Ms Smethurst’s interest in privacy is sufficient to establish that damages would not be adequate.
What does this mean for Ms Smethurst?
This is something of a hollow victory for Ms Smethurst. The High Court did not grant injunctive relief or damages. While the High Court found that the search warrant was invalid, there’s nothing in this decision to prevent the AFP from making use of the information gained from it.
What does this mean for others raided by the AFP under Crimes Act search warrants?
The course that Ms Smethhurst took was somewhat unusual. The majority of challenges to AFP search warrants issued under the Crimes Act are dealt with in the Federal Court of Australia and not the High Court. No doubt Ms Smethurst’s decision to go to the High Court was in large part influenced by the argument that she sought to run in relation to the implied freedom of political communication.
Typically, a challenge to a search warrant in the federal court will be brought under ss5, 11 and 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s39B of the Judiciary Act 1903 (Cth). These are two statutory alternatives, often pleaded on a ‘belt and braces’ approach.
Section 39B(1) of the Judiciary Act 1903 closely reflects section 75 of the Constitution (which Ms Smethurst brought her action under). It seems highly likely that the Federal Court will apply the decision in Smethhurst to future section 39B cases.
Section 16(1)(d) of the ADJR Act, in contrast, provides that the Federal Court may, in addition to clicking set aside a search warrant make “an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.”
It is at least arguable that the ADJR Act provides a wider basis for relief, and that a person aggrieved by the issue of a search warrant is more likely to obtain meaningful relief by applying under that Act.Footnotes
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