Whether or not police should keep a USB holding information copied from a journalist's mobile phone during a raid on her home is at the centre of a High Court case.
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The court on Wednesday has hit pause on a bid to invalidate a warrant police used to search Annika Smethurst's home and phone, so judges can consider arguments put to them over the past two days before deciding how the case proceeds.
Smethurst's lawyers want the court to block police from accessing information on the USB stick - or better yet destroy it - so it can't be used down the track if she faces criminal charges over her stories.
In April 2018, Smethurst published three stories in The Sunday Telegraph and online about a proposal to allow the Australian Signals Directorate to spy on Australians without a warrant.
A day later, the matter was referred to the Australian Federal Police for investigation, and police raided her Canberra home on June 4 this year.
Smethurst was forced to tell police her passcode before they accessed her phone and copied information to a USB which they had brought with them.
It's unknown what police copied from her mobile phone, or what information the magistrate who issued the warrant was provided in order to approve it.
Commonwealth solicitor-general Stephen Donaghue told the court police used a "keyword search" in Smethurst's phone and copied information related to that search, deleting the rest of it.
The News Corp journalist is under investigation over her stories but charges have not been laid, with Mr Donaghue suggesting the information on the USB plays a part in whether criminal action would be taken.
Police have currently agreed not to access the storage drive, he added.
The court on Tuesday pressed Smethurst's lawyer Stephen Lloyd as to whether the information taken from her phone was private or confidential.
It doesn't matter, he argued on Wednesday.
He submitted it was enough that she would suffer distress by police having continued access to it and that the information was taken from a locked phone.
He used the example of discovering an ancient manuscript in his backyard and the distress he would go through if someone either stole it or copied parts of it.
Mr Lloyd also reiterated his point that the warrant was invalid because it either misstated or did not precisely state the alleged offence.
The police can't use the USB if the warrant was invalid as it would constitute trespass, he argued.
"The court hasn't seen anything that justifies refusal of relief we seek," he said.
Even if the material was seized unlawfully, the government argues police should be allowed to keep it so the question of its use can be determined in the event criminal proceedings are launched.
The matter was adjourned.
Australian Associated Press
