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ABC raid legitimised by Federal Court

  • 20 February 2020


The timing was auspicious. As an Australian delegation briefed UK politicians on the plight of Julian Assange and his case against extradition to the United States, the Australian Broadcasting Corporation received a bruising decision in the Federal Court. The national broadcaster had challenged the warrants behind the raid conducted on its Sydney headquarters in 2019.

The Australian Federal Police raid on the 5th of June last year shook the Fourth Estate and, according to managing director David Anderson, ‘was seen for exactly what it was: an attempt to intimidate journalists for doing their jobs.’ It saw an unprecedented closing of ranks between journalists across the political spectrum, pursuing a campaign that came to be known as The Right to Know. Convincing the courts about this principle would prove to be something else.

Declarations that the search warrant be found invalid, the search and seizure of material pursuant to that warrant be deemed unlawful, the AFP be barred from examining the material in question, an order for return of that material and an injunction restraining the AFP from dealing with the seized material were all refused.

The approach, and language of Federal Court justice Wendy Abraham, makes no mention of the broader implications of any press rights in such raids. With no bill of rights or other generally accepted broader principles of liberty to draw on, decision-makers can be tempted to fall back on the drowning minutiae of procedure and qualifications to secure justice. Provided the process is abided by, no broader issue need be entertained.

The attempt to invalidate the warrant as impermissibly broad so as not to provide meaningful limitations on the search was not borne out. Refusing to consider the implications of the warrant, the justice simply stated that the offences connected with the warrant — the passing of information from the whistleblower David McBride in connection to the Afghan File stories to ABC journalists — were evident in the language used.

To be fair, the judge had rudimentary material of the implied right to communication on political subjects to fashion, but even then, the reserve in the decision is stifling and discouraging. The ‘implied freedom of political communication under the Australian Constitution operates solely as a restriction on power and only to the extent necessary to maintain the constitutionally prescribed system of government, the notion of speech as an affirmative value has no role to play’.


'The ABC, heroically, attempted to raise the