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 status of journalistic codes protecting sources to the level of substantive law. The effort failed to convince the bench. Such ethical codes were just that, there being ‘no absolute privilege’ for the supplier of confidential information.'
Justice Abraham cited Comcare v Banerji [2019] HCA 23, that most troubling of decisions on the implied right as it pertained to public servants: that a decision to punish individuals for breaching the Australian Public Service code need not consider the implied freedom when imposing a penalty. With respect, the reasoning seems to split hairs. The constitutional constraint ‘operates upon the legislation conferring the discretion, and not upon the exercise of the discretion itself’. An anodyne right, in every true sense, if it could even be described as a right to begin with.
The ABC, heroically, attempted to raise the status of journalistic codes protecting sources to the level of substantive law. The effort failed to convince the bench. Such ethical codes were just that, there being ‘no absolute privilege’ for the supplier of confidential information. The ABC had attempted to elevate ‘source protection to a position which, on the current state of the law, it does not have.’
The judgment further dismissed the idea that disclosing sources would have a ‘chilling effect’ on prospective informants working within the military and intelligence services. One of the grounds cited against the ABC was the expert evidence for that proposition from Professor Matthew Ricketson of Deakin University, who was brusquely dismissed as a mere ‘expert in the media’ without having ‘direct experience with secret sources in the military or intelligence services, or, other institutions.’ Besides, the idea of any such chill in disclosing information was a distinctly US concept connected with the First Amendment and press freedoms that had no place in Australian law.
All in all, the AFP was entitled to ask for documents that met the appropriate search conditions. While the power might ‘indirectly burden the implied freedom… the purpose of the law [to grant a warrant to investigate criminal offences] is legitimate, and it is reasonably appropriate and adapted to advance that purpose’. Had the ABC been accommodating, more dramatic exposure would have been avoided. Furthermore, the justice found the conduct of the AFP appropriate, the sort of argument that gives deference to authority before rigorous critique. They permitted the ABC’s lawyers to be present; the search took place in one room, on a computer operated by ABC staff.
The ABC’s news director, Gaven Morris, was more than crestfallen in addressing reporters outside the court. ‘For all Australians who are interested in what goes on inside their democracy these sorts of rulings are a blow to the way Australians have access to information in their society,’ he said. Anderson reiterated the point that is sometimes missed by the general public, that Australia had ‘by far the most onerous secrecy laws of any comparable western democracy — the UK, US, Canada, New Zealand.’
Unfortunately, the Australian state’s obsession with secrecy, characterised by such bloated bodies as the Ministry of Home Affairs, will prevent any genuine reform from taking place. In the meantime, courts will diligently apply tests that are woefully inadequate in protecting the Fourth Estate and its sources.
Dr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.
Main image: Victorian newspapers in the Right to Know coalition blacked out their front pages (Getty Images/Quinn Rooney)