April 16, 2020

Australian courts unconcerned by press freedom, protection of sources

News Corp journalist Annika Smethurst, whose home was raided by federal police. (photo: courtesy of Dominic Lorrimer / SMH).
Reporters Without Borders (RSF) deplores the fact that, although Australia’s high court ruled yesterday that the warrant used to search a reporter’s home in 2019 was invalid, its judges continue to recognize that the police have a right to violate the confidentiality of journalists’ sources.

The decision was therefore a Pyrrhic victory. The court’s seven judges ruled that the warrant used by the federal police to search reporter Annika Smethurst’s home in Canberra on 4 June 2019 was invalid because if failed to properly specify the alleged offence justifying the raid. The decision was issued in response to a challenge by Smethurst’s employer, News Corp.


The court nonetheless said the federal police could keep and continue to use the documents seized during the raid, the real aim of which was to identify a source. Worse still, the court only took a position on the way the warrant was worded. None of the judges expressed an opinion on the legality of a raid carried out with the aim of identifying a reporter’s or news organization’s sources.


This in effect means that police officers can at any time and with complete legality swoop on any Australian journalist’s home and search it from top to bottom because of an article they wrote.


Disturbing legal precedent


“In its ruling, the high court made no reference to press freedom and the protection of sources although they are at the very core of this case,” said Daniel Bastard, the head of RSF’s Asia-Pacific desk. “The judges told the federal police they did their job badly but, at the same time, they have given them the right to violate journalists’ sources again.”


Bastard added: “In the light of this particularly disturbing judicial precedent, it is high time that Australia’s legislators established clear legal guarantees for press freedom and the protection of whistleblowers.”


The search of Smethurst’s home was followed the next day by a federal police raid on the Sydney headquarters of the national public broadcaster ABC , in which the police searched computers, email accounts and data storage devices in an attempt to identify the sources that two journalists, Sam Clark and Dan Oakes, used for report about the alleged role of Australia’s Special Forces in the deaths of civilians in Afghanistan.




In response to ABC’s legal challenge, a federal court finally ruled on 17 February that the warrant used in this raid was legal, thereby further undermining the legal guarantees for the protection of journalists’ sources in Australia.


The legal precedents set by both of these cases are especially fraught with consequences because Australia’s constitutional law contains no guarantees for press freedom.


Australia is ranked 21st out of 180 countries in RSF’s 2019 World Press Freedom Index.