Smethurst v Commissioner of Police


Smethurst v Commissioner of Police was a decision of the High Court of Australia. The court refused to grant an injunction to journalist Annika Smethurst, of The Sunday Telegraph, against the Australian Federal Police.

Factual Background

Smethurst was a journalist who worked for Nationwide News Pty Ltd, publisher of The Sunday Telegraph. She had written in the newspaper to inform readers of proposed changes to Australian Government powers of surveillance in relation to the Australian Signals Directorate. The story included images of documents marked "secret" and "top secret". The Australian Federal Police executed a search warrant at Smethurst's residential premises. Police downloaded material from her phone onto a USB stick and seized it.
The case was brought under the original jurisdiction of the High Court, through the s75 provision for the court's hearing of injunctions sought against officers of the Commonwealth.

Decision

The High Court found unanimously that the search warrants were unlawful for breach of statute. Smethurst did not seek damages in remedy of that breach, instead pleading for injunctive relief that would facilitate the return to her of the seized information.
Under the Australian common law there are three stages of analysis required before an injunction may be granted:
  1. There must be a Juridical basis for the injunction
  2. Damages must be an inadequate remedy
  3. There must be no discretionary bar to injunctive relief
The court split primarily on the basis of whether a juridical basis existed for the injunction. The majority found that because the information possessed by Smethurst did not belong to her, the possession by the government of that information did not mean that the government was committing an ongoing tort. Therefore, no juridical basis existed and an injunction was refused.
Additionally, the majority found that even if a judicial basis had existed, relief would have been denied due it being contrary to the public interest. The particular public interest relied upon being the ability to investigate and prosecute crimes. It was sufficient in the majority's view that the information possessed by police might be used in a future prosecution.

Aftermath

One month after the decision the AFP announced no charges would be laid against Ms Smethurst for her stories relying upon classified documents. The police have said all data has been destroyed.