Australia does not have a right to free speech. However the High Court has ruled that there is implied in the Constitution a right to political communication. Like all things constitutional, written or implied, this is subject to the Court’s interpretation. I think it fair to say it is a fairly narrow right, and one the Court keeps narrowing.
However, it is likely to be important in the cases of the Australian Federal Police raids recently on the Canberra home of Anika Smethurst from News Corp, and the ABC offices in Sydney. Certainly, it appears the ABC is going to argue against the raids and one of their arguments will be that the police actions breach their implied constitutional right.
What is this implied right? To quote a friend:
‘An implied right is a right that flows from the existence of another right or constitutional quality as opposed to being specifically noted.
‘The implied right of freedom of political communication flows from the fact that we have a system of publicly-chosen representative democracy, and that system inherently requires political communication.’
“The High Court held that the Constitution established systems of representative and responsible government in particular under sections 7, 24, 64 and 128 and that the freedom to discuss political and government matters was indispensable to these systems of government.”
Scott Morrison’s comment in attempting to justify the recent Australian Federal Police raids on journalists that ‘no one is above the law’ got me thinking. Presumably the AFP had checked that they had the power to undertake these raids, and that they would be or were in accordance with the law and their powers.
That got me thinking about the Constitution and the implied right of political communication. Surely the AFP would have sought advice to make sure their actions in raiding the journalists were, at least in the opinion of eminent lawyers, in accordance with the constitution? After all, no one is above the law.
So on Monday 10 June 2019 I sent a Freedom of Information request to the Australian Federal Police to ask them for copies of all the documents they have on the legality and constitutionality of the raids on Smethurst and the ABC.
After all it would seem strange if the AFP ignored the highest law in the land, including implied rights that flow from it.
I have also argued it is the public interest for such documents to be provided, without cost.
I will keep you informed of what happens.
John Passant is a member of the Canberra Press Gallery. Any media wishing to republish this article should contact John for his permission and rates.