EDELMAN J.
Introduction
On 4 June 2019, the Australian Federal Police searched the residence of Ms Smethurst, a journalist who is employed by Nationwide News Pty Ltd, the publisher of the Sunday Telegraph. The police held a search warrant that had been issued by a Magistrate the previous day ("the second warrant"). On any view, the warrant was poorly expressed. However, it was clear that it relied upon acts by Ms Smethurst and the Sunday Telegraph on 29 April 2018 that were contrary to "section 79(3) of the Crimes Act 1914, Official Secrets".
In the belief that the second warrant was valid, the Australian Federal Police took possession of Ms Smethurst's mobile phone. They demanded, and obtained, her passcode to unlock access to the mobile phone. After they copied the data from her mobile phone to a laptop, the executing officer reviewed documents returned from keyword searches of the data obtained, and selected the documents that he thought fell within the terms of the second warrant. Those documents were copied onto a Universal Serial Bus (USB) storage device. The USB storage device was kept by the Australian Federal Police and the mobile phone data which had been copied to the laptop was deleted from the laptop.
The central issue in this special case is a challenge by Ms Smethurst and Nationwide News to the validity of the second warrant. The second warrant is challenged on the grounds: that it misstates the substance of s 79(3) of the Crimes Act 1914 (Cth), as that provision stood on 29 April 2018 (question 1(a)); that it does not state the offence to which it relates with sufficient precision (question 1(b)); and that s 79(3) of the Crimes Act, as it stood on 29 April 2018, was invalid on the ground that it infringed the implied freedom of political communication (question 1(c)). If the second warrant is invalid there is also a dispute about the consequential relief that should be granted, in particular whether this Court should issue a mandatory injunction requiring the return to Ms Smethurst of the information obtained by the Australian Federal Police (question 4).
If question 1(a) is read literally, it appears directed only to the question of whether the content of the second warrant, when properly interpreted, correctly states the substance of s 79(3) of the Crimes Act. In apparent contrast, question 1(b), read literally, appears to be directed only to whether the second warrant states the substance of s 79(3) with sufficient precision. However, the plaintiffs, correctly, did not suggest that any error in the statement of an offence would invalidate a warrant. Their submissions concerning question 1(a) were essentially part of question 1(b): the warrant was expressed with such a lack of clarity that it was invalid. In order to reflect accurately the manner in which the special case was presented, and the legal issues involved, it is appropriate to reframe questions 1(a) and 1(b) as the following single question: is the second warrant invalid due to a failure to state the offence to which it relates with sufficient clarity?
The second warrant was not invalid merely because it misstated the terms of the offence in s 79(3) of the Crimes Act. A misstatement will only cause a warrant to be invalid if it has the effect that the warrant does not have the minimum required degree of content. However, the effect of the misstatement in the second warrant, together with the lack of clarity in its expression, was that the second warrant lacked the clarity required to fulfil its basic purposes of adequately informing Ms Smethurst why the search was being conducted and providing the executing officer and those assisting in the execution of the warrant with reasonable guidance to decide which things came within the scope of the warrant. It was invalid for that reason.
The remaining question is what relief, if any, Ms Smethurst is entitled to as a consequence of the finding that the second warrant was invalid. The usual basis for the grant of an injunction is to respond to threatened or continuing wrongful conduct. One submission supporting such a grant in this case might have been that the law should recognise a new or developed wrong that gives direct effect to a person's ability to maintain their privacy. But although senior counsel for the plaintiffs, a journalist and a media organisation, relied upon Ms Smethurst's privacy and the private nature of the information on her mobile phone, the plaintiffs eschewed any submission that the law of wrongdoing should be so developed. The plaintiffs relied instead upon privacy in an indirect manner. They argued that the mandatory injunction was required in order to reverse the consequential effect on Ms Smethurst's privacy of the tort of trespass to chattels that was committed by the Australian Federal Police. That submission should be accepted.
Requirements for validity of a warrant
Section 3E(5) of the Crimes Act requires a warrant to state, together with certain procedural details: the offence to which the warrant relates; a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and the kinds of evidential material that are to be searched for under the warrant. These are minimum requirements imposed "to protect the individual from arbitrary invasions of ... privacy and property". They are rules that require a minimum level of clarity as well as a minimum level of content for the purposes of the warrant to be fulfilled.
In light of the purpose of s 3E(5), a warrant must have both sufficient content and sufficient clarity as to (i) the offence(s), (ii) the place or person, and (iii) the kinds of material sought, in order to "ensur[e] the proper identification of the object of the search". Necessarily, since a search warrant will often precede a charge, the minimum degree of content is less than the particulars that would be required in an indictment. Nevertheless, it has been repeatedly stated for decades that the detail in the warrant must be of sufficient content and clarity to give reasonable guidance to the executing officer and those assisting in the execution of the warrant to decide if the things to be seized are within the scope of the warrant and to enable the person whose premises are subjected to the search to understand the basis for the search.
A determination of the content of a warrant is a matter of interpretation. The basic principles for interpretation of a warrant do not differ from those for interpretation of a statute, a written contract or a trust deed. Nor do they differ fundamentally from the manner in which a person interprets the words of a conversation or in a newspaper. In each case, the reader interprets from the words a meaning to be ascribed to the actual or notional speaker. The interpretative principles are essentially the tools of communicative language.
When the statement in a warrant is interpreted, in some circumstances it will have sufficient content even if it provides only the section and subject matter of the offence. For instance, in Brewer v Castles, the statement of one relevant offence was "[s]ection 86(1)(e) of the Crimes Act 1914 (Cth), to wit, conspiracy to defraud the Commonwealth". That statement was described by Pincus J in Beneficial Finance Corporation v Commissioner of Australian Federal Police as a "good example" of one of the wide statements of the nature of an offence in a warrant which have "survived attack". Indeed, provided that the correct offence can be identified as a matter of interpretation, a description can be valid even if an incorrect section number in the relevant statute is specified.
In other circumstances, however, such as where the terms of an offence are expressed at a high level of generality and capable of application to a wide variety of circumstances, the mere reference to the section and subject matter of the offence will not be sufficient. For instance, in a search warrant for a many-storied building of a multinational company it would not be sufficient to state only that the offence is a contravention of the open-textured s 184 of the Corporations Act 2001 (Cth), "Good faith, use of position and use of information".
Separate from a minimum requirement of content is the requirement of sufficient clarity upon which the plaintiffs relied. That requirement is not satisfied merely because the best interpretation of a warrant fulfils the content requirements. That interpretation must be able to be reached without considerable difficulty by the owner or occupier of the premises, and by those executing the warrant.
The validity of the second warrant
Several days before the issue of the second warrant a first warrant had been issued accompanied by an order under s 3LA of the Crimes Act ("the s 3LA order"). The s 3LA order required Ms Smethurst to give assistance to a constable to access, copy or convert data on a computer or data storage device. The first warrant was never executed because the executing officer had expressed concern that the first warrant might not permit a search of Ms Smethurst's vehicle at a location other than her residence. Since the search of Ms Smethurst's premises was undertaken upon the purported authority only of the second warrant it is unnecessary to consider the validity of the first warrant or the s 3LA order. Neither the first warrant, nor the s 3LA order issued in the Magistrate's discretion in respect of it, can rectify any deficiency in the later, invalid, second warrant.
As it is the terms of the second warrant which are said to give rise to its invalidity, the question of validity is to be determined as at the time of the issue of the second warrant. The second warrant is in a common form, containing three overlapping but cumulatively necessary conditions. The three conditions operate in a manner which may be expressed visually as a Venn diagram, permitting various actions to be taken only when all three conditions are met. The permitted actions include "to copy any data to which access has been obtained".
The first condition concerns "the kinds of evidential material that are to be searched for under the warrant". It is extremely broadly stated in the second warrant and includes: "[c]orrespondence - internal and external"; "[m]inutes"; "[r]eports"; "[s]tory pitch"; "[w]ebsite content"; "[e]mails and other forms of electronic messaging"; "USB's"; and "[a]ssessments". It also includes a particular document described as "[c]lassified Australian Signals Directorate document/s titled 'ASD AS A STATUTORY AGENCY - FURTHER AMENDMENTS TO THE INTELLIGENCE SERVICES ACT 2001'".
The second condition concerns the subject matter to which the kinds of evidential material specified in the first condition must relate. It lists eight categories: "Annika Claire Smethurst, born 6 September 1987"; "Cameron Jon Gill, born 24 July 1979"; "Sunday Telegraph"; "News Corp"; "Australian Signals Directorate"; "Department of Home Affairs"; "Department of Defence"; and a link to a webpage: "".
The third condition reads as follows:
"And as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following indictable offence(s) against the laws of the Commonwealth:
On the 29 April 2018, Annika Smethurst and the Sunday Telegraph communicated a document or article to a person, that was not in the interest of the Commonwealth, and permitted that person to have access to the document, contrary to section 79(3) of the Crimes Act 1914, Official Secrets. This offence was punishable by 2 years imprisonment."
Section 79(3), as it existed at the time of the second warrant, was a highly open-textured provision. If the warrant had merely referred to s 79(3) alongside the first condition and the name of the Sunday Telegraph then it would have effectively been an instruction to the executing officer, and information to Ms Smethurst, that the premises were to be searched for the numerous materials including notes, diaries, correspondence, and similar things. That would be close to a general warrant, which has long been held invalid as being "totally subversive of the liberty of the subject". However, when the description of the offence in the third condition is read in light of the second condition, the best interpretation of the second warrant, with considerable attention and thought, is that it directs the search to materials related to the article on the webpage described in the second condition.
An important matter in interpreting the content of the third condition is the reference in the third condition to s 79(3) of the Crimes Act. Any reasonable reader of the second warrant would understand the reference to s 79(3) to be a statement of the relevant offence, with the first and second conditions, and the preceding words of the third condition, providing particular content to the open-textured language of that offence. At the time of the alleged commission of the offence, the offence in s 79(3) had two limbs. The first limb, relevantly, was the communication of a prescribed article to a person. The second limb was permitting a person to have access to a prescribed article, where there are a multitude of ways in which an article could be a prescribed article. Section 79(3) recognised two exceptions that applied to each limb. Those exceptions were: (a) "a person to whom he or she is authorized to communicate it"; and (b) "a person to whom it is, in the interest of the Commonwealth or a part of the Queen's dominions, his or her duty to communicate it".
The words of the third condition, although somewhat garbled, are therefore best interpreted as describing both limbs of the offence in s 79(3). The reference to communicating a "document or article" to a person is best interpreted as a reference to the first limb of s 79(3) and the reference to permitting "that person" to have access to the document is best understood as a reference to the second limb. The words "not in the interest of the Commonwealth" are best interpreted as excluding the second exception.
If the cumulative requirements of the three conditions had been expressed in plain English and with a clear statement in the second warrant of "the offence to which the warrant relates" as required by s 3E(5)(a) of the Crimes Act, then the third condition could have read in terms as follows:
"Any thing satisfying the first two conditions, which provides reasonable grounds for suspecting that it will afford evidence as to the commission of the following indictable offence against the laws of the Commonwealth, namely:
An offence committed on 29 April 2018 by Annika Smethurst and the Sunday Telegraph, which consisted of the following conduct concerning information contained in the article in the webpage set out in condition two above: (i) communicating prescribed information to the public; and (ii) providing the public with access to prescribed information, in a manner that was contrary to section 79(3) of the Crimes Act 1914, Official Secrets."
When the second warrant is interpreted with this meaning, as the Solicitor-General submitted it should be, it is not defective due to insufficiency of content as to offence, premises or person, or the kinds of evidentiary material for which the search is conducted. Ultimately, however, the plaintiffs' submission about invalidity did not concern the content of the second warrant. The plaintiffs' argument in questions 1(a) and 1(b) of the special case was essentially that the second warrant was invalid due to a lack of sufficient clarity.
The third condition presents considerable difficulty for clarity of interpretation for three reasons. First, it is not clear that the prescribed document said to have been communicated is contained on the webpage described in the second condition. The third condition does not refer to the webpage at all, still less as containing the relevant "document or article" that is communicated. Indeed, the third condition initially refers to the communication of a "document or article" and then refers to permitting access to "the document". In other words, it initially appears to express a concern with a particular document rather than with the "information" in a document that is alleged to have been communicated by the article on the webpage.
Secondly, the third condition refers to the communication of the document or article to "a person", singular, and permitting "that person", singular, to have access to the document. This suggests, contrary to the proper interpretation of the third condition, that the person to whom the relevant communication was made is not the general public (the relevant communication being made by means of the newspaper article contained on the webpage).
Thirdly, the third condition contains numerous omissions and misstatements. It omits to say that the information communicated was prescribed information, whether in relation to a person or persons, or the basis upon which it was prescribed. It omits reference to the first exception to the offence in s 79(3). It misstates the second exception in s 79(3). And it assimilates the misstated second exception with the description of the offence.
The requirement of clarity is not satisfied simply because a court, after careful consideration following the benefit of lengthy written and oral submissions by counsel who have themselves carefully considered the meaning of the third condition, is able to interpret the warrant in a way that provides sufficient content to the statement of the offence. A statement of an offence for the purposes of s 3E must have sufficient clarity that, without careful thought and consideration, it will inform the owner or occupier of a premises of the basis for the search and will reveal the nature and boundaries of the search to those executing the warrant. For the three reasons above, the second warrant did not achieve this minimum requirement. It was invalid. Questions 1(a) and 1(b) of the special case, reframed as a single question, ask whether the second warrant is invalid on the ground that it does not state the offence to which it relates with sufficient clarity. The answer is "Yes".
The jurisdiction and power to order an injunction
Question 4 of the special case asks what relief, if any, should issue if the second warrant was invalid. The relief sought by the plaintiffs includes an injunction compelling the Commissioner of Police to deliver up to the plaintiffs all material seized or otherwise obtained pursuant to the warrant or during its execution, together with all copies of such material.
This matter falls within the original jurisdiction of this Court as a matter arising under s 76(i) of the Constitution and s 30(a) of the Judiciary Act 1903 (Cth), and also because remedies of writs of prohibition or mandamus and injunction are sought against an officer of the Commonwealth, taking the matter within s 75(v) of the Constitution. Within this Court's jurisdiction over the entirety of the matter it has powers including those under s 32 of the Judiciary Act to order an injunction as an equitable remedy "to protect a legal right". That section "concentrated" the "aggregation of power" by English courts which included the expanded principles concerning the availability of equitable injunctions provided that "pecuniary compensation would be inadequate protection".
Subsequent to the first hearing of this matter, this Court sought submissions from the parties on issues including whether the principles concerning the exercise of power to order an injunction are different if the source of jurisdiction is s 75(v) of the Constitution. The plaintiffs submitted that the constitutional authority to order the injunction was unique and shaped by its proximity to writs of mandamus and prohibition so that the injunction could extend generally to instances of "reversing consequences", which was said to be the focus of a writ of prohibition. The plaintiffs walked a tightrope in making this submission because they also claimed that the proximity of the authority for the injunction remedy to the authority to order remedies of writs of mandamus and prohibition in s 75(v) did not constrain the content of the injunction to instances of jurisdictional error. The plaintiffs' submissions should not be accepted.
Although s 75(iii) creates original jurisdiction in all matters in which the Commonwealth is a party, s 75(v) was designed to ensure, beyond the jurisdiction created by s 75(iii), the existence of original jurisdiction to respond to the exercise, or likely exercise, of ultra vires acts by officers of the Commonwealth or to respond to an officer of the Commonwealth acting wrongfully in the performance of a duty. It assumed the existence of powers rather than creating new, undefined, powers against public officers governed by a new set of principles which would operate in parallel with equitable principles. Mr Symon, who described the provision as a "safeguard" at the 1898 Melbourne Convention, said of s 75(v) that "[t]he provision merely throws within the ambit of the jurisdiction of the federal tribunal the right to determine the question". Mr Barton, who also insisted that the provision "does not confer any right", later added that the provision "does not give anybody a right to pursue in any way an officer of the Commonwealth, except such right as arises out of the known principles of law".
Unsurprisingly, it was common ground between the parties that s 75(v) confers jurisdiction, or authority, on this Court in matters in which an injunction is sought against an officer of the Commonwealth. It has been held that this "irremovable jurisdiction" cannot be abolished by legislation. In a very limited sense, therefore, s 75(v) is also a guarantee of a source of power because ensuring the existence of jurisdiction, or authority, has been held to prevent the power within that jurisdiction being diminished to such a point as practically to amount to abolition of the jurisdiction. But this does not change the nature of the power being exercised.
Although there was, unsurprisingly, no direct suggestion in this case to the effect that s 75(v) confers a separate, unique, and substantive power to order an injunction, the plaintiffs came close to such an assumption by their submission that an injunction authorised by s 75(v) might operate upon some unique, undefined principles which permit orders to compel the general reversal of consequences of wrongdoing. It is usually the case that this Court will not embark upon consideration of constitutional matters that are not necessary for its decision. But it suffices here to say that the submission that s 75(v) involves a conferral of a separate source of substantive power, replacing the principles of what is "right or just" that underlie equitable injunctions with a vague and undefined content that has never been enunciated since Federation, is a very controversial proposition. Such a proposition has never been accepted by this Court. In the context of the writs of prohibition and mandamus in s 75(v), one member of this Court has rejected the suggestion that s 75(v) involves a positive conferral of a new constitutional power and others have suggested that s 75(v) "may not add to the jurisdiction conferred by s 75(iii)".
The proposition that s 75(v) creates a new and independent source of power is contrary to the concept and essential meaning of "injunction" in s 75(v), which was an order requiring or prohibiting action, based on the developed and developing principles of what is "right, or just". It was not a mandate for a court to disregard any or all principles developed in favour of novel, and potentially idiosyncratic, notions of justice. Indeed, it is hard to understand what norms would govern such a new and independent source of power. Since the principles concerning equitable injunctions have developed by reference to principles of what is right or just, would new and independent principles permit injunctions based upon that which is not right or that which is unjust? Such reasoning might explain why the framers "clearly intended to tie the scope of the s 75(v) jurisdiction to the scope of the remedies listed therein".
In summary, although the s 75(v) remedies must operate consistently with the constitutional context in which they appear, the authority to order an injunction referred to in s 75(v) was not a licence for a court to make any preferred order requiring an officer of the Commonwealth to act or refrain from acting, under the guise of asserted constitutional values. Rather, the developed, and developing, principles governing when it is right or just to issue the injunction in the "discretion" of the court were the means by which those open-ended concepts were, and would be, delimited. However, three points should be made about the scope of the power to issue an injunction as one of the remedies for which authority is conferred by s 75(v).
First, there is a natural curiosity about the inclusion of the general equitable remedy of an injunction alongside two remedies concerned only with errors concerning jurisdiction. But in light of one evident purpose of s 75(v) being to restrain Commonwealth officers from exceeding or abusing power, "injunction" should not be interpreted in any confined way such as by limiting injunctions to instances of jurisdictional error. The inclusion of injunction was "a deliberate decision to invoke equity's traditional role of supplementing deficiencies in the common law".
Secondly, the "injunction" in s 75(v), like the writs of mandamus and prohibition, is a legal term of art or technical legal expression. The use of that term of art tied the meaning of "injunction" to the type of order made in equity but did not freeze it from further development. Speaking of the boundaries of power arising from the terms of art in s 51(xviii), six members of this Court in Grain Pool of Western Australia v The Commonwealth emphasised the necessity to give sufficient "allowance for the dynamism which, even in 1900, was inherent in any understanding of the terms". As four members of this Court said in Re Refugee Review Tribunal; Ex parte Aala, in 1900 the law concerning prerogative writs was in a state of development which should be accommodated, subject to the Constitution, in the development of the constitutional writs. The constitutional injunction is in the same position. In 1900, the equitable injunction was a developing remedy and that development could reasonably have been expected to continue.
Thirdly, even in 1901, the scope of an equitable injunction was not narrow. As I have explained, it extended to any case in which it was right or just to issue. The developed principles governing when it was right or just to issue the injunction in the "discretion" of the court extended to a wide variety of cases and they permitted a variety of categories of injunction.
As to the categories of case in which the equitable injunction could be ordered, these included both the purported exercise of public power without authority and abuses of public power. In the Convention Debates, Mr Barton quoted from a leading decision in the United States to the effect that when a "plain official duty" is "threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it". Mr Barton and Dr Quick and Mr Garran also observed the analogy between mandamus and injunction.
As to the categories of injunction, the injunction could be either prohibitory (negative) or mandatory (positive). It was recognised that there was "no rule which prevents the Court from granting a mandatory injunction where the injury sought to be restrained has been completed" and that an injunction could issue if "the injury is of so serious or material a character that the restoring things to their former condition is the only remedy which will meet the requirements of the case".
For these reasons, the mere fact that a source of authority for an injunction might be s 75(v) of the Constitution is not a basis for the exercise of the power to order an injunction to depart from those developing equitable principles by which a court exercises its "discretion" to order an injunction. In particular, contrary to the plaintiffs' submissions, it is not permissible to resort to assertions of a generally unarticulated new principle such as a power to "reverse consequences" by the mere assertion that the violation of a plaintiff's property rights was committed by the State. No such principle was recognised in Entick v Carrington, which involved neither an injunction nor the exercise of jurisdiction under s 75(v) of the Constitution. Indeed, the highfalutin language in that case might reflect an eighteenth century elevation of the right to property above other rights, which are at least as fundamental, such as bodily integrity or liberty. It would be remarkable if today the remedies for infringement of rights to property were somehow elevated to a privileged position over bodily integrity or liberty.
The right upon which the injunction is based
An equitable wrong of misuse of private information
The usual basis upon which an injunction is sought is to protect a right by preventing threatened or continuing wrongful conduct. Since the plaintiffs sought an injunction requiring delivery up of all the information copied from Ms Smethurst's mobile phone and all copies of that information, it would usually be necessary for the plaintiffs to demonstrate that the retention or use of the information was unlawful.
In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, in the course of considering the existence of any rights to privacy for corporations, Gummow and Hayne JJ described Murphy J's earlier identification of an "unjustified invasion of privacy" as "one of the 'developing torts'". However, rather than searching for a wrong such as intrusion of privacy, which would be expressed at a high level of generality, their Honours suggested that the better course for development would be to "look to the development and adaptation of recognised forms of action to meet new situations and circumstances". Callinan J also pointed to the recognition in the United States that the general law of privacy there comprises "four distinct kinds of invasion of four different interests" including the intrusion into a plaintiff's private affairs and the "[a]ppropriation, for the defendant's advantage, of the plaintiff's name or likeness".
In this special case, the plaintiffs' written submissions appeared to suggest a development of the rights of individuals in this manner. They relied upon the decision in Lincoln Hunt Australia Pty Ltd v Willesee. In that case, an interlocutory injunction was sought to restrain the defendants from publication of video tape said to have been obtained in the course of a trespass on the property of the plaintiff. Young J refused the interlocutory injunction because damages were an adequate remedy for the plaintiff. However, his Honour accepted that even if the matters filmed were not confidential there was nevertheless a prima facie case for an injunction based upon the unconscionable nature of the alleged conduct. Unpacking the conclusory nature, or expression of a result, inherent in the adjective "unconscionable", his Honour referred to United States authorities concerning the boundaries of liability for invasion of particular privacy interests, and identified the private nature of the premises upon which the trespass occurred.
Whether or not the result in Lincoln Hunt Australia Pty Ltd v Willesee can be explained on another basis, it appears that the underlying reasoning by which Young J recognised a prima facie case was essentially based upon an extension of the protection of confidential information to the protection of private information, thus anticipating the incremental extension of existing causes of action as contemplated by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd. Indeed, apparently building upon such reasoning, senior counsel for the plaintiffs in this case described the purported execution of the second warrant as involving "sift[ing] through [Ms Smethurst's] private materials".
However, at the brink of making such a submission for development of the law expressly, senior counsel for the plaintiffs eschewed any suggestion that the law of torts or equitable wrongdoing should be developed to further an underlying principle of privacy. In the absence of proper argument, therefore, the decision in Lincoln Hunt Australia Pty Ltd v Willesee and any development of the law concerning confidential information to encompass the "intrusion" into a plaintiff's private affairs must be put to one side.
The tort of trespass to goods
All of the plaintiffs' eggs were ultimately placed in the basket of trespass to goods. Unfortunately, there was little focus upon why the protection of Ms Smethurst's property rights should permit an injunction to reverse the consequences of any infringement of those rights. With the emphasis in this special case on validity of the warrant and discretionary considerations for the order of an injunction, the parties made few submissions concerning whether, and why, the protection of a right to non-interference with property permits an order requiring reversal of the consequences of the trespass. By focusing upon the wrong, the parties took their eyes off the right.
The plaintiffs are correct that the Australian Federal Police committed the tort of trespass to goods. The tort of trespass to goods, like that of trespass to land, protects property from interference by any intended act: unless legally authorised, no person can set "foot upon my ground without my licence". Although the consent, licence or waiver of the owner is sometimes said to deny an element of the cause of action, the better view is that the consent, licence or waiver operates as a justification for conduct that would otherwise be wrongful. Likewise, a statutory authorisation to interfere with the goods or land of another is also a justification.
The Commissioner and the Attorney-General of the Commonwealth (intervening), correctly, did not assert that the Australian Federal Police had acted with the licence of Ms Smethurst. Whilst Ms Smethurst did not object to either the taking of her mobile phone or the copying of the information from her mobile phone (with the passcode that she provided), her implied consent was entirely conditional upon the validity of the second warrant, pursuant to which the police had purported to act in copying the information from Ms Smethurst's mobile phone. The invalidity of the second warrant means that there was a failure of the objective condition upon which Ms Smethurst's consent was based and hence there was no basis for any right of the police to copy the information. The invalidity of the warrant also precludes any reliance upon the warrant as an authorisation or, more accurately, a justification for the police action without consent.
A mandatory injunction to ameliorate the consequences of wrongdoing
An injunction without continuing or anticipated unlawfulness
Injunctions are generally ordered to protect rights or to restrain wrongs. There are two bases upon which an injunction is commonly ordered. The first basis is to require or prevent some action in order to prevent the likely commission, recurrence or continuation of a public wrong. In the absence of a special individual interest, a civil action to vindicate a wrong to the public generally can be brought by the Attorney-General, either ex officio (from the office) or ex relatione (at the instance of another) through a relator proceeding: "[i]t is the traditional duty of the Attorney-General to protect public rights and to complain of excesses of a power bestowed by law". The second basis is to require or prevent some action in order to prevent the likely commission, recurrence or continuation of a wrong to a private person. In such cases the injunction is usually sought by the person whose rights might be, or are being, infringed by the defendant.
Whether the wrong is public or private, the injunction can be in a negative or prohibitory form or it can be in a positive or mandatory form. It has been held that a mandatory injunction cannot be obtained "by merely saying 'Timeo' [I fear]" and that there must be a "likelihood of a future apprehended wrong". What is far less usual, whether for private or public wrongs, is for a mandatory injunction to issue in order to ameliorate the consequences of a wrong rather than to prevent it occurring or continuing. As Story explained, an injunction "seeks to prevent a meditated wrong more often, than to redress an injury already done".
A libertarian principle of the common law is that it is usually easier to justify ordering a wrongdoer to pay money to ameliorate the consequences of wrongdoing than to justify ordering a wrongdoer personally to act to ameliorate those consequences. The legal rules concerned with the legal response to the consequences of wrongdoing for which the wrongdoer is liable are usually rules concerned with the measure of damages. Damages interfere with the defendant's liberty only by requiring payment of money. These money awards can respond to the consequences of wrongdoing in various ways beyond compensating for losses. In appropriate cases restitution of a gain or an account and disgorgement of profits or exemplary damages might be ordered. By contrast with orders for payment, orders requiring a defendant personally to perform other acts, when omitting to act would be lawful, were described by Lord Westbury LC as delivering the defendant to the plaintiff, "bound hand and foot". Hence, other things being equal, it is often the case that "[a] permanent injunction will only issue to prohibit acts which the law categorises as unlawful".
However, other things are not always equal. As five members of this Court said in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia, it has been established for more than a century that in exceptional cases a mandatory injunction can be granted despite the completion of the "injury sought to be restrained". The joint judgment in that case cited a line of authorities affirming the power to grant a mandatory injunction, after completion of the wrong, in order to restrain the continuation of damage caused by the wrongdoing where that damage is ongoing and very serious.
The central rationale for a mandatory injunction in cases where there is no anticipated or continuing unlawful action is that the interference with the liberty of the defendant by ordering the defendant to take action where inaction would be lawful is justified by the extent of the inadequacy of damages to ameliorate the consequences of the wrongdoing. However, the greater the intrusion into a defendant's liberty arising from the injunction the more that the decision to make the order must be "attended with the greatest possible caution".
A mandatory injunction is most easily justified where the consequences are ongoing and serious, the interference with the defendant's liberty is trivial and, compared with an injunction, damages are an inadequate means to "undo the consequences of a wrong". For instance, in McManus v Cooke, a mandatory injunction was granted to require the defendant to take action involving what was described as the insignificant inconvenience of removing a skylight from which "it would be extremely difficult to estimate the damage" that the plaintiff would suffer.
The concerns of (i) inconvenience to, and interference with the liberty of, the defendant and (ii) adequacy of damages to the plaintiff are matters requiring caution before ordering a mandatory injunction which compels a defendant to act despite the lack of actual or anticipated unlawful conduct by the defendant. A simple, but powerful, example is where the police, without knowledge of the invalidity of a search warrant, take an ordinary saucer which contains the fingerprints of the perpetrator of a very serious offence. Could it really be suggested that it is just to compel the police to return the saucer to the perpetrator of the offence, so that the perpetrator can destroy the evidence of their crime, rather than to require the police to pay any damages, possibly nominal, if the saucer is wrongfully retained for a period in order to be used for the purpose of prosecution? No rhetorical resort to the fundamental nature of the sanctity of property could justify such a result.
In the above example, the mandatory injunction would be refused on the grounds that the plaintiff has no interest that could not be satisfied by damages but the intrusion into the liberty of the defendant would have significant adverse consequences. The injunction would be refused despite the continuing unlawfulness of the police retaining the saucer. The caution before interfering with the liberty of a defendant applies with even greater force where, as here, the injunction would compel a defendant to act when inaction would not otherwise be unlawful. However, there is nevertheless power in an appropriate case, where the interference with the liberty of the defendant is slight and the consequences of the wrongdoing to the plaintiff are significant, to order a mandatory injunction to reverse or ameliorate the consequences of a wrong even if the injunction would compel a defendant to act when inaction would not otherwise be unlawful. There is considerable authority that supports the existence of this power.
An example is Esso Petroleum Co Ltd v Kingswood Motors (Addlestone) Ltd. In that case, a defendant who was likely to have committed the tort of inducing a breach of contract by purchasing land that was used as a garage was ordered in interlocutory proceedings to transfer title to the land back to the vendor. The defendant had no legal duty to take the limited step of transferring title to the land back to the vendor, for whom the consequences of wrongdoing were significant. The primary judge, Bridge J, described the defendant as attempting to "get away with it subject only to a liability to pay damages" and asked, "what reason can there be in principle why the tortfeasor should not be ordered to undo that which he has done?" Although the hearing in that case was interlocutory, it necessarily follows that the same remedy would have been available on a final basis.
The potential availability of a mandatory injunction to ameliorate the consequences of wrongdoing without an independent legal duty to perform that act is also supported by the existence of other orders which, while having the same goal, are sometimes given different descriptions. Sometimes orders requiring a defendant to act are described simply by the effect of the order. Sometimes they are described as a declaration of a constructive trust. Sometimes they are described as an order for delivery up of materials.
As to examples of orders akin to a mandatory injunction to ameliorate the consequences of wrongdoing but which are described by their effect, courts and tribunals, acting under both specific and general powers, have made orders compelling a defendant to make an apology or a corrective statement, on the apparent premise that, in the circumstances of the case, interference with a defendant's lawful liberty to speak is seen as slight and the intangible consequences of the wrongdoing for which damages or another order would be inadequate are seen as significant. Some of these orders for apologies or corrective statements were made under general powers described as powers to order an injunction or powers to redress loss or damage.
An example of the use of a declaration of constructive trust to achieve the same goal of requiring a defendant to perform an act can be seen in Attorney-General for Hong Kong v Reid. In that case, a corrupt Hong Kong prosecutor had used the proceeds of bribery to purchase freehold titles which were conveyed to him, his wife, and his solicitor. The Privy Council rejected an argument that the Crown was confined to a money remedy and held that the freehold titles were held on constructive trust for the Crown. This recognition of a constructive trust over the freehold titles, property rights for which the common law has long accepted that money is an inadequate substitute, was merely an instrument to obtain a conveyance to the Crown of the freehold title. It was "akin to orders for conveyance". Such orders are made where money orders are not capable of doing full justice.
Another analogous order arises when a defendant is ordered to deliver up goods to the plaintiff. A court can order delivery up of the goods if a money award would not be adequate redress, such as where the goods are unique or where alternative goods are not immediately available and the goods are particularly needed by the plaintiff. In these cases, there is little concern with the liberty of the defendant to use the goods owned by the plaintiff to the exclusion of the plaintiff. The governing principle is that the order is made to redress the consequences of the wrongdoing by "a complete remedy" in equity whenever "the remedy afforded by the ordinary courts is incomplete". Although the order for delivery up of goods is not, in form, an injunction, it has the same basic aims and in a system of fused administration of law and equity could often be alternatively expressed as a mandatory injunction for delivery of the goods. The cases concerning orders for delivery up of goods are often, but not always, cases where there is a continuing wrong due to the retention of a good over which the plaintiff has title. In Hart v Commissioner of Australian Federal Police, the Full Court of the Federal Court of Australia held that copying by the police of electronic information was not authorised by s 3K of the Crimes Act as it stood at the time. The police had title to the devices upon which the information was held. Although only declaratory relief was sought and ordered, French, Sackville and R D Nicholson JJ said that in a case involving an "unauthorised invasion of privacy" appropriate relief may include orders for delivery up of the storage devices containing the copied information.
The inadequacy of damages and the liberty of the defendant in this case
The inadequacy of damages is to be assessed from the perspective of Ms Smethurst only, and not the perspective of the Australian Federal Police. From Ms Smethurst's perspective, the question is whether a damages award would be inadequate to ameliorate the consequences of the trespass by the Australian Federal Police. Contrary to Ms Smethurst's submission, the relevant consequence is not the possibility that she might be exposed to jeopardy due to any incriminating material on her mobile phone or the costs or distress associated with such exposure. Ms Smethurst pointed to no basis for any immunity from investigation by the Australian Federal Police and therefore no lawful interest in resisting investigation or exposure to jeopardy.
However, independently of any development of the law concerning private information, Ms Smethurst does have an interest in resisting the potential dissemination of private information contained on her mobile phone which has not been lawfully obtained. In an appropriate case, the strength of that interest will establish that damages are inadequate. The question is whether this case is such an appropriate case. I have not found this question easy. The reasons of Nettle J concerning the limited use to which the Australian Federal Police are likely to put the information in the performance of their functions present a powerful case for a conclusion that damages would be adequate. Ultimately, however, I have concluded that Ms Smethurst's interest in privacy is sufficient to establish that damages would not be adequate.
There was no dispute that the information obtained from Ms Smethurst's password-protected mobile phone was private information. If that information had been obtained lawfully, it would have been subject to the protections afforded by Pt IAA of the Crimes Act. Those protections, undoubtedly motivated by a concern for unspecified individual rights and freedoms, which would encompass privacy, include: (i) in some circumstances providing the occupier of the premises, upon request, with a copy of the information as soon as practicable after the seizure; (ii) restrictions upon using the information as a "thing seized under this Part" for particular purposes and only "if it is necessary to do so for that purpose"; (iii) restrictions on sharing the information with a State, Territory, or foreign agency; and (iv) subject to limited exceptions, requirements to return the information when it is no longer required for purposes provided by statute or for judicial or administrative review proceedings.
I agree with Kiefel CJ, Bell and Keane JJ that those restrictions do not apply to information obtained by an unlawful warrant. The consequence of the trespass, therefore, is that Ms Smethurst's private information is held by the Australian Federal Police without the privacy protection to which she would otherwise have been entitled. Further, in circumstances in which the second warrant was substantially lacking in clarity, the private information obtained might have gone well beyond the information to which the Australian Federal Police were lawfully entitled. An award of damages, unlike a mandatory injunction, would provide no privacy protection over information that should not have been obtained or even information that would otherwise have been obtained but which would have been subject to the privacy protections of the Crimes Act. In the likely absence of any pecuniary loss, damages would also be very difficult to calculate.
The inadequacy of damages is a consideration in favour of an injunction only from the plaintiff's perspective. The perspective of the defendant must also be considered when assessing whether the defendant should be compelled to take action to reverse or ameliorate the consequences of a wrong where the defendant is not under a duty otherwise to perform the act.
From the perspective of the Australian Federal Police, a mandatory injunction could involve a substantial interference with their liberty to act lawfully. Subject to the effect on the statutory powers of police of any development of common law or equitable principles concerning privacy, the Australian Federal Police are at liberty to disseminate private information about others in connection with their lawful investigation of Commonwealth offences.
The paucity of facts before this Court makes an overall assessment of the relative effect of a mandatory injunction upon each party particularly difficult. There are insufficient facts from which to draw any inference about the nature or quality of the private information copied from Ms Smethurst's mobile phone. Nor are there sufficient facts from which any inference can be drawn about the relevance of any of the private information copied from Ms Smethurst's mobile phone to the investigation of Commonwealth offences, particularly in light of the lack of clarity in the second warrant.
Some of the formulations of the injunctive relief sought by the plaintiffs require a greater restriction of the liberty of the Commissioner than could be necessary to ameliorate the adverse consequences of the wrongdoing to Ms Smethurst. For instance, in circumstances where it is not known whether the private information is still possessed by Ms Smethurst, an injunction that required all copies of the private information to be destroyed could prevent the Australian Federal Police from ever lawfully obtaining that information, which might be required to investigate and prosecute crime.
The Solicitor-General of the Commonwealth submitted that this Court might permit the Commissioner to retain and use the copied data on terms that restrict the Australian Federal Police to use of the information only according to the regime in the Crimes Act as if the information had been obtained lawfully. An injunction in these terms would protect the interest of Ms Smethurst in her privacy to the same extent as if no trespass had occurred and the warrant had been obtained lawfully. The injunction would constrain the liberty of the Australian Federal Police by restricting them to acting as if the information had been lawfully obtained. However, an injunction in these terms does not truly reverse the consequences of the unlawful action. Rather, it treats the unlawful action as though it were lawful. It should be no answer to a claim for delivery up from a person who unlawfully takes a valuable heirloom for that person to say that the owner would have given him the heirloom if he had asked for it. Further, the lack of clarity of the second warrant means that there is a real possibility that some of the information might never have been lawfully obtained even if the warrant had been clearly expressed.
There is a further alternative which does not require treating the trespass as though it were lawful and which would also preserve the liberty of the Australian Federal Police to obtain the information, provided that it can be done lawfully. The appropriate form of such a mandatory injunction, which should be expressed as subject to any lawful warrant that would, in effect, permit the information to be obtained and retained by the Australian Federal Police, would be:
"Upon 72 hours' notice from Ms Smethurst, and subject to the terms of any lawful warrant, the Commissioner of the Australian Federal Police deliver up to Ms Smethurst, at an agreed time and place, or in default of agreement at an address for service upon Nationwide News Pty Ltd, a Universal Serial Bus (USB) storage device containing the information copied from Ms Smethurst's mobile phone in an accessible form, and delete all other copies of that information held by, or within the control of, the Australian Federal Police."
By expressing an injunction in this form, the order ameliorates the consequences of the trespass by intruding to the minimum degree possible upon the liberty of the Commissioner to act lawfully without treating the trespass as though it were lawful. By making the injunction subject to the terms of a lawful warrant the order also avoids the comic possibility of the simultaneous return of the information to Ms Smethurst on a USB storage device and seizure of that USB storage device pursuant to a valid warrant. Naturally, and in any event, the Australian Federal Police would retain title to any USB storage device delivered to Ms Smethurst.
Considerations external to the parties that inform the discretion to refuse the injunctive relief
Even where an injunction would be warranted as necessary to do justice between the parties there remains a "discretion" to refuse the injunction. However, the cases have sometimes conflated the separate questions of (i) whether, as between the parties, a plaintiff would have a right that could support the injunction and (ii) whether the injunction should be refused for "discretionary" reasons. An example is the decision in A v Hayden. In that case, the plaintiffs were members of the Australian Secret Intelligence Service whose identity was not known to the Chief Commissioner of Police but who were believed to have committed breaches of the criminal law. The plaintiffs sought an injunction to restrain the Commonwealth from disclosing their identity to the Chief Commissioner including on the ground that to do so would violate confidentiality terms in their contracts of employment with the Commonwealth. The injunction was refused. A simple reason for refusal might have been that there was no right upon which the injunction could be based because parties cannot, by agreement, confer upon themselves a right that the other will maintain the confidentiality of a crime, arguably other than a trivial misdemeanour. At one point in his judgment Gibbs CJ appeared to favour that view, saying that the injunction would not issue because, quoting Wood VC, "there is no confidence as to the disclosure of iniquity". However, at another point Gibbs CJ said that the contract term was "not in itself invalid" but a "discretion" should be exercised to deny the injunction. Similarly, Mason J held that although the contract term was not void or unenforceable, the court could refuse a remedy on the ground of "public policy", citing the example of Beresford v Royal Insurance Co. Yet, in that case, Lord Atkin, with whom Lords Thankerton and Russell of Killowen agreed, held that the effect of the "public policy" was that the "contract is in the circumstances unenforceable".
For the reasons given in the previous section, as between the parties the plaintiffs were entitled to an injunction to reverse the consequences of the trespass committed. However, the Commissioner and the Attorney-General also relied upon the Court's discretion to refuse the injunction. The discretionary factors relied upon were reasons independent of the conduct of the parties. These independent reasons of discretion nevertheless involve the application of general principles. If a court were to refuse an injunction for reasons other than those of general principle then, as Lindley LJ said of damages in lieu of an injunction, there would be a danger that the court could be turned into a "tribunal for legalizing wrongful acts".
A common instance where an injunction is refused due to considerations of general principle beyond the justice between the parties is where the injunction would interfere with the rights of third parties. Another is where it would interfere with a clear and compelling interest of the general public, such as where a need for public housing meant that, despite their construction being a result of a breach of a negative covenant, it would be "an unpardonable waste of much needed houses to direct that they now be pulled down". In this case, the reason effectively relied upon by the Commissioner and the Attorney-General is the "public interest in the administration of and non-interference with justice", which, more specifically, has been said to include a liberty for the police lawfully "to do whatever is necessary and reasonable to preserve the evidence of the crime". It was submitted by the Commissioner and the Attorney-General that, since unlawfully obtained evidence will not always be excluded under s 138 of the Evidence Act 1995 (Cth), the information "might still be admissible in the event that criminal proceedings are commenced", and hence that the public interest required that the police be able to retain and use it.
In some cases it has been said or held to be a sufficient reason to refuse to make an order to return seized material that the material is to be tendered as part of an existing or reasonably certain prosecution. These cases do not assist here for three reasons. First, in this case, no inference can be drawn that any prosecution will be brought, and no inference can be drawn that the material is relevant to any prosecution. Secondly, many of the cases involve claims for the return of lawfully seized material. Where material is lawfully seized, there is a common law power associated with the power to seize, which gives effect to the purpose of seizure, for the material to be retained for as long as it is reasonably required to achieve the purpose for which it has been seized.
Thirdly, and most fundamentally, in none of the cases was there any separate consideration of the two different issues described above which arise upon a claim for the return of seized material: (i) whether the plaintiff would have been entitled to the return of the seized material as against the defendant, and (ii) whether discretion should nevertheless be exercised to refuse to order the return. For instance, in Malone v Metropolitan Police Commissioner, the Court of Appeal of England and Wales refused to order the return of the banknotes lawfully seized from Mr Malone, on the basis that they were potentially material evidence at a pending criminal trial. Due to the conclusion by the Court that it was lawful to retain the banknotes, there was no consideration of either (i) whether damages for the capital value or use value of the notes would be adequate for any period of unlawful retention of the banknotes, or, if not, (ii) whether a "discretion" should be exercised to refuse the return of the seized banknotes. These two issues are also not separated in the discussion of any return of the electronic equipment seized in the Caratti litigation, or the money and jewellery in Walker v West, or in the example given by Lord Denning MR of a saucer with the fingerprints of the great train robbers. In each instance, it is strongly arguable that there would be no basis for an order for return of the material, as between the parties, thus rendering moot the issue of "discretion" based upon an asserted public interest in preserving the evidence of crime.
I accept that the public interest in the administration of criminal justice could, particularly in circumstances of serious crime, allow the refusal of an order for the return of unlawfully seized material to which a plaintiff would otherwise have been entitled if the material is (i) reasonably likely to be admissible evidence to prove a crime and (ii) necessary to give that evidence effectively. In contrast, if there is no reasonable likelihood of criminal proceedings, or no reasonable likelihood that the material could be admissible, or if the evidence could be given effectively without the material, such as by identical copies of the material, then there could not be any sufficient public interest to justify denying a plaintiff the right that they would otherwise have to the return of the material.
The onus of establishing that a plaintiff should be denied a right to the return of material for reasons of public interest rests upon the person asserting that public interest, here the Commissioner and the Attorney-General. A principle of public interest is not established by speculation. For instance, it would be in the public interest to refuse the return of seized goods to a plaintiff if it were known that the goods would necessarily be used in the commission of a crime. But it is not sufficient to speculate that the goods might be so used, even from evidence that the plaintiff intended to use the goods in the commission of a crime, because the plaintiff might repent of that intention.
The Commissioner's and the Attorney-General's assertion of a public interest that would justify the refusal of the mandatory injunction should not be accepted. It requires speculation upon speculation upon speculation. First, there is no basis from which any inference can be drawn that the information contained on the USB storage device held by the police contains evidence of any crime. Secondly, even if it could be assumed that there was information which established evidence of a crime, there is no basis from which it could be concluded that any criminal proceedings are reasonably likely. Thirdly, there is no basis to conclude that information establishing evidence of a crime was reasonably likely to be admissible in such proceedings. Fourthly, and again in the absence of any detail in the special case about the content of the information, there is no basis from which it can be concluded that the information was reasonably necessary to permit admissible evidence to be given effectively. Fifthly, as I have explained, an injunction in the form described at [270] above does not necessarily prevent the Commissioner from lawfully obtaining the information.
Conclusion
It was not in dispute that the plaintiffs had standing to challenge the constitutional validity of s 79(3) of the Crimes Act, upon which the second warrant was based. They relied upon the constitutional invalidity of s 79(3) as a basis to establish the invalidity of the second warrant, which depended upon the existence of an offence known to law. They also relied upon the constitutional invalidity of s 79(3) to negate the Commissioner's and the Attorney-General's assertion of a public interest in the retention of the information for a prosecution under s 79(3). However, since the basis for the plaintiffs' challenge to the validity of the second warrant was not limited to the constitutional invalidity of s 79(3), and since the plaintiffs have succeeded in their challenge to the validity of the second warrant and obtained a form of the relief that they sought, it is unnecessary to consider their case concerning the constitutional validity of s 79(3) of the Crimes Act.
The questions stated in the special case, as reframed in these reasons, should be answered as follows:
(1)(a)-(b) Yes.
(1)(c) Unnecessary to answer.
(2) Unnecessary to answer.
(3) Unnecessary to answer.
(4) Orders should be made:
(i) for certiorari to quash the search warrant issued on 3 June 2019; and
(ii) that upon 72 hours' notice from Ms Smethurst, and subject to the terms of any lawful warrant, the Commissioner of Police deliver up to Ms Smethurst, at an agreed time and place, or in default of agreement at an address for service upon Nationwide News Pty Ltd, a Universal Serial Bus (USB) storage device containing the information copied from Ms Smethurst's mobile phone in an accessible form, and delete all other copies of that information held by, or within the control of, the Australian Federal Police.
(5) The first defendant should pay the plaintiffs' costs of the special case.