Yahoo News Annika Smethurst’s lawyers urged to prove confidentiality in AFP raids case
![High court judges suggest journalist’s team changes tack in bid to force Australian federal police to delete seized data. Annika Smethurst’s lawyers have been urged to clarify their case on whether material copied from her phone was confidential to support her bid to force police to delete the information taken during the raid on her home. On Tuesday the high court stood over oral submissions to Wednesday’s hearing to give Smethurst’s counsel time to clarify her case and consider seeking an order to prevent the use of material copied from her phone rather than its destruction. Smethurst is challenging the legality of the Australian federal police June raid investigating whether she and her source breached secrecy provisions by publication of part of a classified document revealing a proposal for the Australian Signals Directorate to gain new spying powers. On Tuesday morning the chief justice, Susan Kiefel, directed Smethurst’s counsel, Stephen Lloyd, to confine oral submissions to the validity of the warrant authorising the raid rather than the constitutionality of the alleged offence police were investigating. The 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”. Lloyd argued the warrant needed to describe the information police were seeking, “how it became to be proscribed” and particulars of the “offending conduct” rather than just a reference to the section of the offence. Lloyd argued the lack of detail on the warrant was “apt to mislead Smethurst and the executing officers” to allow a broad search of any material critical of the government. Smethurst has asked the court for an injunction ordering the police to destroy material collected and copied from her phone on the basis the raid constituted trespass. Lloyd was grilled repeatedly about how the court could order destruction of documents, without a breach in equity such as a breach of confidence. Kiefel said that a breach of confidentiality could result in destruction of confidential material but noted “that’s not this case” and the plaintiffs had “never said the information was confidential to the plaintiff”, an observation echoed by Justice Patrick Keane. Justice Geoffrey Nettle noted that trespass could result in damages but asked what grounds Smethurst had to ask for destruction of the information “if it is not confidential – and it doesn’t sound like it is [confidential] to you”. Lloyd responded that damages were “not an adequate remedy” and although the plaintiffs hadn’t asserted breach of confidence the court should undo the wrong of material being “forcibly taken from the phone” through the torts of trespass and conversion. Kiefel suggested some of the material may be confidential depending on its “ultimate source” and queried whether a negative injunction ordering the police not to use the information would be sufficient. Lloyd said that it may be. Lloyd then changed tack, arguing that copied material is confidential in the sense that “it’s on their own phone and they’re the only one that can access it”. After a short break, the court returned and Kiefel suggested it stand over submissions on relief so that Smethurst’s counsel could consider their position further. Lloyd suggested on Wednesday he may shift Smethurst’s case to seek a negative injunction preventing police using material seized and copied, rather than its destruction. Kiefel replied that Lloyd would still have to examine the “underlying cause [of action]” and warned “the basis for a negative or mandatory injunction needs to be dealt with with a good degree of particularity tomorrow morning”. Lloyd argued in addition to an injunction Smethurst would like the offence ruled unconstitutional both because of the ongoing investigation of her and because police “might issue a warrant in relation to other people”. The solicitor general, Stephen Donaghue, representing the AFP and attorney general Christian Porter, submitted that in the real world it “could not have been clearer” to Smethurst what material the police had come to seize, given the warrant included the date she had published three articles about the confidential document. Donaghue submitted that a “long line” of authorities had established that it was sufficient for the warrant to contain details of the section and title of the alleged offence. “One can’t slide from the statutory requirement to state the offence to a requirement to set out the conduct with particularity,” he said, noting this was particularly difficult at the investigation phase. Donaghue conceded that some of the grammar in the warrant was “not good” and the description was “inapt” because it lifted language from a possible defence – that communication of information was part of an officer’s duty and not against the commonwealth’s interests – in describing the offence. The hearing continues.](https://s.yimg.com/ny/api/res/1.2/jyEufz64BE2626nP4M6pbQ--/YXBwaWQ9aGlnaGxhbmRlcjt3PTk2MDtoPTU3Ng--/https://media.zenfs.com/en-GB/homerun/theguardian_763/3e69537f6a29a7d62ca0c42e2a468cd1)
Annika Smethurst’s lawyers have been urged to clarify their case on whether material copied from her phone was confidential to support her bid to force police to delete the information taken during the raid on her home.
On Tuesday the high court stood over oral submissions to Wednesday’s hearing to give Smethurst’s counsel time to clarify her case and consider seeking an order to prevent the use of material copied from her phone rather than its destruction.
Smethurst is challenging the legality of the Australian federal police June raid investigating whether she and her source breached secrecy provisions by publication of part of a classified document revealing a proposal for the Australian Signals Directorate to gain new spying powers.
Related: Christian Porter asks high court not to destroy material from Annika Smethurst raid
On Tuesday morning the chief justice, Susan Kiefel, directed Smethurst’s counsel, Stephen Lloyd, to confine oral submissions to the validity of the warrant authorising the raid rather than the constitutionality of the alleged offence police were investigating.
The 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”.
Lloyd argued the warrant needed to describe the information police were seeking, “how it became to be proscribed” and particulars of the “offending conduct” rather than just a reference to the section of the offence.
Lloyd argued the lack of detail on the warrant was “apt to mislead Smethurst and the executing officers” to allow a broad search of any material critical of the government.
Smethurst has asked the court for an injunction ordering the police to destroy material collected and copied from her phone on the basis the raid constituted trespass.
Lloyd was grilled repeatedly about how the court could order destruction of documents, without a breach in equity such as a breach of confidence.
Kiefel said that a breach of confidentiality could result in destruction of confidential material but noted “that’s not this case” and the plaintiffs had “never said the information was confidential to the plaintiff”, an observation echoed by Justice Patrick Keane.
Justice Geoffrey Nettle noted that trespass could result in damages but asked what grounds Smethurst had to ask for destruction of the information “if it is not confidential – and it doesn’t sound like it is [confidential] to you”.
Lloyd responded that damages were “not an adequate remedy” and although the plaintiffs hadn’t asserted breach of confidence the court should undo the wrong of material being “forcibly taken from the phone” through the torts of trespass and conversion.
Kiefel suggested some of the material may be confidential depending on its “ultimate source” and queried whether a negative injunction ordering the police not to use the information would be sufficient. Lloyd said that it may be.
Lloyd then changed tack, arguing that copied material is confidential in the sense that “it’s on their own phone and they’re the only one that can access it”.
After a short break, the court returned and Kiefel suggested it stand over submissions on relief so that Smethurst’s counsel could consider their position further.
Lloyd suggested on Wednesday he may shift Smethurst’s case to seek a negative injunction preventing police using material seized and copied, rather than its destruction.
Kiefel replied that Lloyd would still have to examine the “underlying cause [of action]” and warned “the basis for a negative or mandatory injunction needs to be dealt with with a good degree of particularity tomorrow morning”.
Lloyd argued in addition to an injunction Smethurst would like the offence ruled unconstitutional both because of the ongoing investigation of her and because police “might issue a warrant in relation to other people”.
The solicitor general, Stephen Donaghue, representing the AFP and attorney general Christian Porter, submitted that in the real world it “could not have been clearer” to Smethurst what material the police had come to seize, given the warrant included the date she had published three articles about the confidential document.
Related: Concrete action rather than nice words are needed on press freedom | Lenore Taylor
Donaghue submitted that a “long line” of authorities had established that it was sufficient for the warrant to contain details of the section and title of the alleged offence.
“One can’t slide from the statutory requirement to state the offence to a requirement to set out the conduct with particularity,” he said, noting this was particularly difficult at the investigation phase.
Donaghue conceded that some of the grammar in the warrant was “not good” and the description was “inapt” because it lifted language from a possible defence – that communication of information was part of an officer’s duty and not against the commonwealth’s interests – in describing the offence.
The hearing continues.
