Dear Colleagues;

The High Court of Australia handed down another decision in a high-profile, controversial case today in Smethurst v Commissioner of Police [2020] HCA 14 (15 April 2020) http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/14.html . (The other one issued recently was of course the Pell appeal, but that did not raise any private law issues.)

The Smethurst case resulted from the decision of the Australian Federal Police to raid the premises of a journalist who had reported on some proposals to expand the surveillance of Australian citizens. The case ended up touching on a number of interesting private law issues.

In short, the police executed a warrant which they said allowed them to seize the reporter’s phone and download relevant documents to a USB stick. Immediately afterwards an interlocutory injunction was granted requiring them not to use these documents or to transfer them from the USB, pending the resolution of this legal challenge.

All 7 members of the court, some for slightly different reasons, held that the relevant warrant was invalid as either too broad or vague or actually mis-stating the relevant law. Hence there was a trespass to property (coming onto the land) and trespass to goods (demanding that the phone be handed over), neither of which were justified by lawful authority- see eg Nettle J at [148]. What divided the court 4-3 was the appropriate remedy beyond declaring that the warrant was unlawful and these torts had been committed. The plaintiff claimed an injunction requiring the USB stick to be handed over with data intact. The majority of the court (Kiefel CJ, Bell and Keane JJ; Nettle J) disagreed- in broad terms, the jurisdiction to issue an injunction was meant to be exercised in accordance with historic equitable principles, and the only reason for requiring delivery of the USB stick would be to prevent the plaintiff from being prosecuted for a federal offence. Equity would not assist an iniquity. Nor did equity usually issue post-tort injunctions.

The dissenting judges in separate judgments (Gageler, Gordon and Edelman JJ) focussed on the fact that the jurisdiction being exercised was one directly authorised by the Constitution, s 75(v) concerning orders including “injunctions” against officers of the Commonwealth, that this should not be read too narrowly, and that it was important as a matter of principle that some sort of remedy be provided for unlawful behaviour. However, it is also worth noting that all of the dissenters accepted that if an order were made requiring delivery of the USB stick, there would be nothing to stop the AFP, under a properly drawn warrant this time, immediately reseizing the stick! Eg Gageler J:

[138]…It would remain open to the AFP to seek to satisfy a magistrate or other issuing officer that there are reasonable grounds for suspecting that the data or some part of it is relevant to a Commonwealth offence. If the issuing officer were to be reasonably so satisfied on a correct understanding of the law, it would be open to the issuing officer to issue a warrant authorising a search of any premises at which the issuing officer was satisfied the USB drive would be located within the period of 72 hours after the issue of the warrant.

In the course of the decision there is passing reference to the possible existence of a tort action protecting privacy at common law (as in Lenah Game Meats, the court says it is not necessary to decide whether such an action exists); the operation of the equitable action for breach of confidence; the question whether the law allowing this data to be “seized” would be contrary to the implied Constitutional freedom of political speech (not considered necessary to discuss in any detail). The question of whether a private law “wrong” is necessary to ground an injunction is debated (Gordon J says not if, as in this case, a constitutional jurisdiction is being exercised- see [165]). And of course the general issue as to whether and in what circumstances an injunction should be issued in equity’s “auxiliary” jurisdiction in support of common law rights, when the common law tort has already been committed. I am sure there is more I have missed in a quick read. But it is a very interesting set of private law issues.

Regards

Neil

 

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

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