BY JEFF GORDON
Is it consistent with the rule of law that a grave overstep of government power is merely paid for when it can be easily reversed? In Smethurst v Commissioner of Police  HCA 14, the High Court held that the Australian Federal Police (AFP) need not return phone data seized at a private residence under an invalid search warrant. The Court should be applauded for unanimously ruling that the warrant at issue was invalid. But a majority of the Court, comprising Kiefel CJ, Bell and Keane JJ (in a joint judgment) and Nettle J, immediately undid that good work by refusing to issue an injunction under s 75(v) of the Constitution that would have compelled the AFP to return the unlawfully seized information. This remedial failure might seem small beer, especially if a damages claim remains open. Yet if the price of federal police lawlessness is compensatory damages, then the rule of law has gone awry.
Annika Smethurst is a journalist who wrote articles revealing a top-secret plan to empower the Australian Government to covertly gather digital information on its own citizens. The articles were published in a national newspaper, in print and online, on 29 April 2018. The AFP investigated whether publication of the news articles violated s 79(3) (now repealed) of the Crimes Act 1914 (Cth), which generally prohibited the communication of prescribed documents, articles or information. The flavour of the former s 79 is conveyed by the heading: ‘Official secrets’. On 3 June 2019, more than one year after the articles were published, the AFP obtained a warrant from a Magistrate to search Smethurst’s home. The warrant was executed the next day. The AFP located Smethurst’s phone, copied its data to a forensic laptop, searched the copied data for relevant documents, and copied those relevant documents to a USB stick. The AFP then wiped its forensic laptop and took its USB stick.
(The AFP attracted significant criticism for raiding the home of a journalist who had the gumption to report a story in the national interest. Indeed, the warrant’s execution was a catalyst for the Right to Know coalition’s public-awareness campaign. On Monday 21 October 2019, newspaper front pages across Australia were mock censored to protest the secrecy of the Australian Government.)
On 26 June 2019, Smethurst and her employer (a News Corp entity) commenced proceedings in the original jurisdiction of the High Court seeking, among other orders, certiorari to quash the warrant and an injunction to compel the return or destruction of the data on the USB stick. Certiorari was granted unanimously. Six justices agreed that the warrant did not identify, and misstated the nature of, an offence arising under s 79(3). This deficiency invalidated the warrant because s 3E(5)(a) of the Crimes Act requires a search warrant to state the offence to which the warrant relates. The seventh justice, Edelman J, read into s 3E(5)(a) a requirement of ‘clarity’, which the warrant failed to meet. But on the injunction issue, the Court’s harmony shattered. A bare majority held that the AFP cannot be enjoined from retaining the unlawfully seized data.
This case implicates important values: privacy, freedom of speech and of the press, freedom from arbitrary government interference and the rule of law. The news organisations that publicised and criticised the AFP raid and the High Court judgment naturally focused on the threat to freedom of the press. (The cloud over Smethurst was only recently removed with the AFP’s announcement that no charges will be laid.) The warrant, George Williams rightly observed, was not invalidated on press-freedom grounds; rather, it was annulled on ‘narrower grounds that identified only a defect in the search warrant’.
From the remedial perspective, however, the Court’s decision is very broad indeed. The majority said nothing about the status of Smethurst as a journalist. Instead, the Court’s decision suggests that anyone whose data the AFP seizes under an invalid warrant — think of those who lack the national profile and platform of a Walkley-Award-winning journalist — should not expect that data to be returned. The Court’s remedial holding and its potentially sweeping implications call for comment, especially since jurisdiction was founded on s 75(v) of the Constitution, which confers mandatory original jurisdiction on the Court where an injunction is sought against a federal officer.
The five judgments
According to the joint judgment, in seeking injunctive relief the plaintiffs were invoking equity’s auxiliary jurisdiction in aid of legal rights. A violation of a legal right is required to ground an injunction in equity’s auxiliary jurisdiction. The joint judgment held there was none. The plaintiffs did not make any property claim over the USB stick, nor did they contend that the common law of Australia should recognise a breach-of-privacy tort. (It’s unsurprising that News Corp did not agitate for a privacy tort.) The plaintiffs rightly contended that the AFP trespassed when executing the unlawful warrant. But the joint judgment rejected the plaintiffs’ argument that an injunction was necessary to remedy the trespass. The trespass was complete. Equity would only intervene now if the damage suffered was serious or if the effects of the trespass were continuing. The joint judgment did not regard the possibility of being investigated by the AFP as a cognisable injury, let alone a serious or continuing one. And even if the plaintiffs could identify a right violation, injunctive relief (like all equitable relief) is discretionary. In the exercise of its discretion, the joint judgment concluded that the prospect that the data seized may disclose criminality was sufficient to deny the injunction.
Justice Nettle, who rounded out the majority, stressed that the plaintiffs were requesting a mandatory restorative injunction. An injunction to repair the consequences of a trespass, claimed Nettle J, is a very rare beast. The perceived scarcity of restorative injunctions suffused the exercise of his discretion. The mere fact that the search was unlawful did not suffice for a restorative injunction, especially in circumstances where the AFP acted honestly. And courts will not enjoin the disclosure of criminal conduct. Justice Nettle conceded that nobody yet knows whether the data seized will disclose criminality. Nevertheless, either way the discretion weighed against an injunction: if criminality is not disclosed, then there will be no prejudice to Smethurst; if it is, and a prosecution is commenced, then admissibility would be independently assessed by the trial judge.
Each minority Justice wrote separately, but they all agreed that the injunction could be framed to facilitate rather than impede the AFP’s functions. Justice Gageler opened with a discussion that centred on the ‘constitutional injunction’ under s 75(v). The High Court should not be reticent to issue constitutional injunctions: the power to issue them may be informed, but is not confined, by traditional equitable principles. Although he seemed reluctant to overlay s 75(v) with the distinction between equity’s auxiliary and exclusive jurisdictions, Gageler J directly engaged and disagreed with the joint judgment. The legal rights to be protected by an injunction were Smethurst’s common law rights to exclusive control and possession of her real and personal property. The AFP had tortiously invaded those rights by trespassing. Moreover, it would be impossible for damages to restore Smethurst to the position she would have been in had the trespasses not been committed. Damages were inadequate while the AFP continued to invade Smethurst’s legal rights by retaining the tortiously seized data.
On discretion, Gageler J said that the AFP bore the onus of establishing a basis for the refusal of the injunction and could not discharge that onus by demonstrating that it merely wanted to keep the data for a possible future investigation. The Crimes Act prescribed how the AFP could obtain the data. Justice Gageler issued a reminder that the rule of law cannot allow a judge exercising discretion to excuse the AFP from the statutory mandate.
Justice Gordon (no relation) concluded that it would be a mistake to premise the grant of a s 75(v) injunction on the violation of a freestanding legal or equitable right. All that is required to establish presumptive entitlement to a constitutional injunction is an act in excess of Commonwealth power. The plaintiffs were therefore entitled to an injunction unless discretionary considerations demanded otherwise. Justice Gordon identified none. The plaintiffs had not delayed seeking relief. The worry that an injunction could conceal criminality would be answered by a carefully crafted order. And an injunction would not interfere with a court’s discretion when considering admissibility issues in any subsequent prosecution. (For good measure, Gordon J also said that in any event there was a violation of Smethurst’s legal right not to suffer a trespass, and damages were inadequate to remedy that violation.)
The third minority Justice, Edelman J, said that the availability of injunctions under s 75(v) is governed by equitable principles. Although unusual, it is not unprecedented for an injunction to reverse the consequences of past wrongdoing. Subject to discretionary matters, a mandatory restorative injunction will issue where the consequences of the wrongdoing to the plaintiff are significant (read: damages are inadequate) and the interference with the defendant’s liberty is slight. Justice Edelman considered damages inadequate because Smethurst’s phone data was undoubtedly private information. Had the data been obtained lawfully, its use would have been subject to statutory restrictions protecting Smethurst’s privacy. Money damages could not restore that privacy protection. And the order could be drafted to minimise interference with the AFP’s investigative functions.
Finally, Edelman J acknowledged that in some cases the public interest in preserving evidence of a crime could operate as a discretionary reason for declining an injunction. But here that inquiry was too speculative. There was no basis to assert that the unlawfully seized data contained evidence (let alone admissible evidence) of a crime. Nor was there any basis to conclude that criminal proceedings were likely.
Comment: taking s 75(v) seriously
Every judgment except Nettle J’s cited a paragraph from the five-justice judgment in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 stating that s 75(v) ‘is a means of assuring to all people affected that officers of the Commonwealth obey the law’ (at ). It is a short jump to Gleeson CJ’s observation in that case that s 75(v) ‘secures a basic element of the rule of law’ (at ). Yet the Smethurst majority did not assure us that federal officers obey the law: the AFP disobeyed the law but was not held to its legal obligations by s 75(v). How, then, can we make sense of the joint judgment’s remarkable statement that rule-of-law purposes ‘do not speak to the operation of s 75(v) for which the plaintiffs contend’ (at )? By realising that, for the Smethurst majority, the rule of law is about legal equality. Every person, regardless of position or status, is equal before the law and subject to the jurisdiction of the ordinary tribunals. The constitutional injunction is essentially an equitable remedy (joint judgment) and it is defined by equitable doctrine (Nettle J). On this point, Edelman J agreed. For these five justices, all that the rule of law requires is that Smethurst’s entitlement, and the AFP’s subjection, to an injunction under s 75(v) is determined by the same private-law equitable principles that apply to everyone else.
It’s possible to take issue with the majority’s application of equitable doctrine. The majority (and Edelman J) relied on this sentence from Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 (decidedly not a s 75(v) case):
‘Where the damage caused by tortious conduct is ongoing and is “extreme, or at all events very serious”, a mandatory injunction may issue compelling the wrongdoer to prevent the occurrence of further damage’ (at ).
The internal quote is from Durell v Pritchard, an 1865 Chancery appeal which rejected the plaintiffs’ prayer for an injunction compelling the defendant to pull down his new building because it obstructed a right of way and an ancient-lights easement. But there are cases in which a mandatory restorative injunction was granted where damage was neither extreme nor serious. For example, Goodson v Richardson, an 1874 Chancery appeal, granted a mandatory restorative injunction to remove water pipes laid by the defendant along a government-controlled highway running through the plaintiff’s land.
This is not to argue that, all things considered, the Court should have applied Goodson rather than Durell. It simply raises an unanswered question: why was the extreme-damage principle of Durell adopted when other approaches were available? It seems odd to pluck the extreme-damage principle from its ancient-lights origins, elevate it to the status of an Australian constitutional rule, and conclude that it is not satisfied when federal police retain the fruits of a trespass.
There is a deeper point. Especially in Smethurst, there are strong reasons to think that legal equality does not exhaust the rule-of-law concerns underlying s 75(v). Legal equality might be the primary concern of the rule of law when the Commonwealth acts in a capacity closely analogous to a private entity (for example, as an employer). But when the Commonwealth acts as a sovereign — when it exercises its monopoly over legitimate coercion — legal equality is absent. It’s disquieting that the Smethurst majority placed no emphasis on the legal status of the trespasser. The trespasser here was not a private party who built a taller building that blocked his neighbour’s daylight, à la Durell. Rather, the trespasser acted under claim of Commonwealth authority. Only police officers can execute warrants; resistance is impossible when a warrant appears valid. Suddenly, AFP officers arrived at Smethurst’s home, armed with federal coercive power, and demanded admission under a seemingly valid warrant. This was no ordinary trespass.
The rule-of-law concerns implicated by Smethurst are about government under law. A central principle of the rule of law is that executive actions require legal authority. As the joint reasons in Plaintiff S157 observed, s 75(v) secures this central principle by ensuring that federal officials obey the law. If that is a correct statement of the function of s 75(v), then it is too glib and cryptic to merely say, as the joint judgment did, that an excess of Commonwealth power ‘may bring s 75(v) into focus’ (at ). The burden of the Smethurst majority was to justify, beyond the mere statement that the injunction is an equitable remedy, the conclusion that s 75(v) imported all traditional equitable doctrines. Without that justification, it is difficult to take seriously the claim that a constitutional remedy in s 75(v) is cramped by mid-nineteenth-century English case law on ancient-lights easements. Section 75(v)’s presence in Chapter III of the Constitution and its rule-of-law purposes must have some legal consequence. Justice Gordon’s approach therefore has much to recommend it. The legal authority for the search was apparent but it was not real. The overstep of power, honest though it may have been, should have given rise to a presumption of injunctive relief under s 75(v).
The obvious response is that the Smethurst plaintiffs may be entitled to damages. The joint judgment stressed that no claim for damages was pursued in the High Court. But Gageler J forcefully observed that the government should not be permitted to efficiently breach the social contract: when resisting an injunctive-relief claim arising out of a property tort, ‘no officer of the Commonwealth should be heard to say “you can have your damages later”’ or ‘“your damages are enough”’ (at ). Compensatory damages for trespass under an unlawful warrant should not be considered part of the day-to-day operating expenses of a police force. Surely s 75(v) would prohibit the federal police from purchasing access to residents’ goods and premises. And forgive me for hoping that, once a serious trespass had been established, the Commonwealth’s interest would be on the side of the victim.
Dr Jeff Gordon is a Lecturer at Sydney Law School.
Suggested citation: Jeff Gordon ‘Government under Law: Smethurst v Commissioner of Police’ on AUSPUBLAW (27 May 2020) <https://auspublaw.org/2020/05/government-under-law-smethurst-v-commissioner-of-police>