Annika Smethurst faces long wait to hear if court backs attempt to protect spying source

Annika Smethurst and News Corp will have to wait until the new year to find out whether their high court attempt to protect the source of her story about expanded spying powers has succeeded.

The court wrote to parties on 3 December asking them to “[assume] the search warrant to have been invalid” and make further submissions about whether it has the power to order the destruction of material collected by police.

The June police raid on Smethurst’s home sparked more than just a fierce campaign for press freedom and the right to know – it led to a high court case to force police to delete the information gathered in the raid, including the content of Smethurst’s phone.

By September the police had also raided the home of former intelligence officer Cameron Jon Gill, who Guardian Australia revealed was the suspected source of Smethurst’s story which reproduced part of a classified document.

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Smethurst’s story put both the source and the journalist in the frame for potential prosecution. News Corp has said Smethurst has never revealed the source’s identity, even to her employer.

The threat of prosecution loomed throughout a two-day hearing in November, with the solicitor general, Stephen Donaghue, representing the Australian federal police and the attorney general, Christian Porter, warning that a police undertaking not to use material gathered in the Smethurst raid would expire at the end of the case.

But the court didn’t want to hear oral arguments about the implied freedom of political communication – instead focusing the case on the validity of the Smethurst warrant.

That warrant said: “On the 29 April 2018, Annika Smethurst and the Sunday Telegraph communicated a document or article to a person, that was not in the interest of the commonwealth, and permitted that person to have access to the document, contrary to section 79(3) of the Crimes Act 1914, Official Secrets.”

Donaghue conceded the grammar was “not good” and the description of the elements of the offence “inapt”.

But “in the real world” Donaghue said it was perfectly clear what police had come to seize and, even if the warrant were invalid, the high court should let some future court decide whether to admit it as evidence if the hinted-at prosecution went ahead.

Police have played down the possibility that Smethurst could be charged – a prosecution that would require the attorney general’s consent – meaning it is Smethurst’s source who is left with the greatest fear of what the new year will bring.

On 3 December the court extended a lifeline. The senior registrar, Carolyn Rogers, wrote to parties noting that arguments so far “did not refer specifically to the original jurisdiction of the court” to grant injunctions in section 75(v) of the constitution.

She asked parties to make further submissions on whether – assuming the search warrant to have been invalid – the police’s trespass to property or acting in excess of statutory power could allow the court to order an injunction.

The development is a positive sign for the journalist on the point of the validity of the warrant and gives her lawyers a second chance to ask the court to bin material which could incriminate her source, a major difficulty for the plaintiffs’ case at a two-day hearing in November.

Smethurst’s counsel, Stephen Lloyd, was grilled repeatedly about how the court could order destruction of documents without a breach in equity such as a breach of confidence.

Lloyd told the court that the issue with pleading breach of confidence was “the need to disclose the material that we seek to keep private”.

Instead, Lloyd argued that there were two bases to grant an injunction: to restore Smethurst and News Corp “to the status quo before the tortious conduct” of the alleged trespass and “to prevent the [police] commissioner from breaching his statutory duty not to use or disclose the seized material”.

Now the court has given the plaintiffs another chance to make good their case on remedy and will return in the new year to consider its power to fix the practical consequences that flow if the warrant were invalid.