The High Court’s decision to invalidate the warrant used by the Australian Federal Police to raid journalist Annika Smethurst’s home presents no victory for press freedom.
It serves to only further highlight the ersatz nature of Australia’s meagre whistleblower protections.
Asked whether police infringed on freedom of political communication that day – rifling through Smethurst’s drawers in search of the source behind her story about plans to expand the Australian Signals Directorate – the court was firm in its response: “Unnecessary to answer”.
Instead, the judges’ quibble was semantic. In the end, the Federal Police erred in the sloppy drafting of its warrant. Its attempt to intimidate, it seems, crossed no bounds.
The AFP can argue its intention was never to intimidate journalists.
But the message telegraphed by its search of Smethurst’s home – followed just a day later by the raid on ABC’s Sydney headquarters over the “Afghan Files” investigation – was not intended for the media alone.
It was a clear warning to sources: if you leak, even if there is a clear public interest in doing so, the AFP will leave no stone unturned to find you.
In deciding to allow the police to keep the materials seized during the raid of Smethurst’s house, the High Court has echoed this warning.
Police can not only use an invalid warrant to get closer to the identity of sources, they are permitted to hold on to ill-gotten gains.
Criminal proceedings are thrown out of court for less severe violations of evidence rules.
At the same time, the threat of prosecution still looms over Smethurst, and ABC journalists Dan Oakes and Samuel Clark. The AFP has not ruled out laying charges against any of them.
Instead, Attorney-General Christian Porter has said the prosecution of journalists will require his personal sign-off.
This is not a tenable proposition. No government should have the final word on whether the media holding it to account should be hauled into court.
Australia may not have any enshrined constitutional protections for the press, but the media will not abide the criminalisation of journalism or the hunting of whistleblowers – particularly at a time when scrutiny and accountability is so vital.
Perhaps Smethurst put it best herself this week when she said, “This is far from over.”
This article was first published in the print edition of The Saturday Paper on Apr 18, 2020 as "Pyrrhic victory".
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