Australia’s top cop rejected suggestions it was a “mistake” to raid the home of an Australian journalist even though the warrant behind it was later ruled “invalid” and no criminal charges were laid against her, he told a Senate inquiry into press freedom on Monday.
Australian Federal Police Commissioner Reece Kershaw made the comments in relation to a raid on the home of News Corp journalist Annika Smethurst in June last year over a story about proposed spy laws to be used against Australian citizens.
And both Mr Kershaw and Home Affairs Secretary Michael Pezzullo dismissed calls from a group of media organisations to allow contested search warrants for journalists, arguing the move would be “detrimental to the workings” of the police.
The latest hearing in the Senate’s press freedom inquiry came just a week after a similar parliamentary probe recommended changes to warrants against media, greater transparency in criminal investigations into journalists, and reviews of defamation and freedom of information laws.
The changes would address some of six concerns campaigned for by the Right to Know coalition, but would not include changes allowing search warrants to be contested by media organisations before raids, instead introducing a Public Interest Advocate who would advise judges.
Media, Entertainment and Arts Alliance chief executive Paul Murphy said contestable search warrants were an important measure to protect a free press in Australia as the burden of proof for warrants was currently “the wrong way around”.
“The burden should not be on the journalist or media organisation but on the applicant to demonstrate why in a particular case the public interest should be overridden,” he said.
But Mr Kershaw argued the current system of obtaining search warrants for Australian newsrooms was working, and the AFP was right to pursue Ms Smethurst for her news reports even though the High Court later ruled the search warrant was invalid.
“These are decisions made by individual officers who were acting in the best interests of protecting and serving the community and there was an offence identified in relation to the and they pursued that,” he told the Senate Committee.
“I don’t think it was a mistake because, again, the court only ruled the warrant invalid.”
Mr Kershaw said the example showed media organisations could contest search warrants after raids had been carried out, and they did not require further avenues to question searches.
“I would argue that it was contested,” he said.
“It’s important to understand that even under our current warrant regime you can have an urgent injunction to halt or stop the search, you can have judicial review, you can claim parliamentary privilege, legal professional privilege, go to the High Court, and also you can object to evidence that has been improperly or illegally obtained.”
The AFP and Home Affairs Department instead proposed a voluntary “notice to produce” scheme for media organisations early this year, in which police could request documents and the names of confidential sources from journalists without raids.
Mr Pezzullo said the Department preferred this system to address concerns about press freedom in Australia, saying it could be combined with recommendations from a Public Interest Advocate.
He dismissed calls from the MEAA and media organisations for contestable warrants in Australia.
“We look upon it with a very high level of disfavour,” Mr Pezzullo said. “It would be detrimental to the workings of the AFP.
“I don’t think that the Commonwealth’s position in relation to the disfavour with which it views contestable warrants will much change.”
The Senate inquiry into press freedom was called after police raids on the home of Ms Smethurst and the ABC’s Sydney newsroom in June last year.
ABC journalist Dan Oakes still faces the prospect of criminal charges over his reports about alleged war crimes committed by Australian soldiers in Afghanistan, after the AFP handed over a brief of evidence to the Department of Public Prosecutions in July.
The Senate inquiry is expected to issue its recommendations next year.