Police must honour right of free press

When the High Court threw out the search warrant used by police to seize the work of journalist Nicky Hager, it was less a judgment in favour of the media than a judgment against the police. The law is clear. When it comes to search warrants, there is a line which protects all in society, and in some cases particularly the press. Police must behave in unlawful ways to cross that line.

As the judgment explains, a warrant is gained without notice so as not to thwart the benefit of a surprise search and in doing so strips from the subject of the search the opportunity to make their own opposing case to the court.

For police, it meant those seeking the warrant from the district court judge were obliged to make Hager’s case for him. They were supposed to tell the judge the warrant involved a journalist, for there are court-defined guidelines for searching media. Detectives were obliged to acknowledge that the Evidence Act provides a journalistic privilege, which is further recognised in the Search and Surveillance Act.

The judge was told none of this. Instead, police identified Hager as a “political author”. In the High Court, the police argued they did not need to tell the district court judge Hager was a journalist, or that journalists had rights. It was legal sophistry which terminally undermined the police case. As Justice Denis Clifford remarked, there was a duty of candour on police to be frank, honest and open with the district court judge about what it was doing, who it was doing it to and why it was necessary.

The courts have found the need for protecting sources to be so high that only a greater public interest will strip them away. That detectives did not mention this in seeking the warrant suggests officers might not fully grasp its importance. It is appropriate the Independent Police Complaints Authority has chosen to act on the complaint filed by the Green Party to investigate the decisions that caused the search warrant to be sought in this way.

The media is not an investigative tool of the state, nor a prosecutorial aid for the state. It must not be seen to be used as such for fear the benefit of a free press is diminished, as was argued in Hager’s case, because of the chilling effect on potential sources. If it were used in these ways, ultimately, the public interest would not be served.

Rather, it is of benefit to the state to have a free press which protects potential sources. A free press enhances our democracy by emboldening voices which strain to be heard, by trafficking in information which needs to find its way out. A free press strives to shake our foundations to ensure they are built on rock, not sand.

This does not mean anyone claiming the title of “journalist” is free from a valid legal search. The public interest is paramount. It is so for our democracy, for media — and for the police. Just as media must not abuse its protection of sources by adopting their legal shield in unworthy cases, so must the police recognise there are good reasons for the shield. They should not try to circumvent it when it suits.