Australia’s press freedom fight is not over yet
The threat of prosecution hung over Annika Smethurst's head for almost a year after her Canberra home was illegally raided in 2019.
The News Corp journalist was a powerless onlooker as a team of Australian Federal Police riffled through her belongings, including her personal drawers.
The detectives were searching for material relating to an article published a year earlier in the Sunday Telegraph that informed the public of proposed extensions to the Australian Signals Directorate's powers to spy on Australians without their knowledge.
The entire unnecessary saga highlights the lack of protection of press freedom in Australian law.
Many laws can inadvertently catch the legitimate activities of professional journalists. This includes offences former s 79 of the Crimes Act 1914 (Cth), under which Annika and News Corporation were originally investigated, which in simple terms makes it a criminal offence to disclose any information deemed secret by Government. Laws such as this are dangerous for a democracy.
The public would be right to be puzzled by the complexity and contradictions of the legal debate surrounding this matter.
The High Court, for example, found the warrant issued for the search was unlawful but held, by bare majority, that the AFP could retain the material obtained by the unlawful search.
Perhaps even more puzzling were the arcane legal debates in the judgement and the lack consideration on whether the raids amounted to a breach of freedom of political communication.
If nothing else, the case highlighted that there is no robust constitutional protection for free speech in Australia.
It is in no one's interest that the current laws and investigatory regime, with their complexity and contradictions continue. To promote certainty and to recognise the legitimate interest of the public to access information, the law in this area need to be changed as a matter of urgency.
Reform which can protect the public's right to know could allow "contestable" warrants to be issued on journalists, based on the system that already operates in the UK.
Police should be compelled to show why a search is in the public interest, journalists should be able to contest warrants and judges should oversee the process.
The current regime is ad hoc and inconsistent and lacks specific journalist protections and do not promote good public policy or debate.
It is the risk of investigation and searches, as well as prosecution, that creates the "chilling effect" that discourages public interest journalism.
It is important for law enforcement to be under a practical obligation to gather evidence, and form opinions, at the outset of an investigation as to whether the matter involves a significant impact on public interest journalism.
If such matters are not taken into account at that formative stage then criminal investigations into journalists will continue for several years, at a cost of many hundreds of thousands of dollars in legal costs.
Annika's case is a stark demonstration of these issues. It no doubt involved a great deal of personal stress to her, which was in my view entirely avoidable if such the above principles were in place.
The AFP should now rule out any prosecution against ABC journalists Dan Oakes and Sam Clark whose offices were raided a day after police knocked on the door of Annika Smethurst.
A warrant against a journalist or media organisation should only be issued after an application before a judge at which the journalist or media organisation has a right to participate, present evidence and make submissions.
Such hearings can also ensure that appropriate orders are made to protect confidentiality of the investigation or any materials seized.
In addition, any warrant for access to journalism materials should be limited to circumstances when it is clearly in the public interest to do so, and where a judge has weighed up the importance of public interest journalism together with the legitimate interests of law enforcement.
As long as the threat of investigation or prosecution for publishing or obtaining important information, it is less likely that journalists will publish stories that Australians have a right to hear and a need to know. Governments will not be held properly to account for poor decisions or even criminality.
The issue is not ultimately about the rights of journalists - it is about every Australians' right to know about information that affects them.
Robert Todd is a partner of Ashurst Law Firm and led the successful legal challenge to the Smethurst warrant before the High Court of Australia.
Originally published as Australia's press freedom fight is not over yet