Right to Know still has a long way to go

16 April 2020

The opacity of the Australian public service, and its disposition to secrecy, has left journalists in a bind. Leaks constitute the oxygen of the secret state, but publishing that material remains a dangerous affair. With a rather weak implied constitutional right, that of communicating on political subjects, and insufficiently broad public disclosure protections, it was little wonder that the Right to Know campaign gathered force.

The Right to Know, a few decades late in coming, was spurred on by dramatic and troubling raids conducted by the Australian Federal Police on the home of News Corp journalist Annika Smethurst and the Australian Broadcasting Corporation’s Sydney offices in June 2019.

Smethurst had published three articles in 2018 outlining proposed amendments that would extend the powers of the Australian Signals Directorate to covertly access the data of both foreigners and Australian citizens. The ABC had published classified material outlining alleged atrocities and misdeeds committed by Australian forces in Afghanistan in 2017. Both instances prompted raids by the Australian Federal Police made under the old official secrecy provisions of the Crimes Act 1914 (Cth).

As the AFP said of the 4th June 2019 raid on Smethurst’s home, ‘This warrant relates to the alleged publishing of information classified as an official secret, which is an extremely serious matter with the potential to undermine Australia’s national security.’

Both Smethurst and the ABC challenged their respective warrants. In February, the Federal Court found against the ABC, satisfied that the warrants executed in searching their Sydney premises were justified. Journalistic codes of ethics were, as Justice Wendy Abraham concluded, merely that, lacking the formal status of law. Nor could the implied right to communication on political subjects be exercised personally, being merely a ‘restriction on power’. The spectacle of officers going through records to identify whistleblowers and informants effectively dispelled any notion that sources could be protected.

Smethurst and News Corp fared better, but in the most restrictive terms. The High Court decision on 15th April found for her, unanimously invalidating the search warrant. The justices accepted that search warrants had prescribed conditions as outlined by the legislature, balancing the need for an effective criminal justice system with that of protecting an individual’s liberty from arbitrary invasion of their privacy. Warrants, to that end, had to have a clear object.

'The press victory, to that end, was more bitter than sweet, barely ruffling the feathers of the national security state.'

The warrant being

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Right to Know still has a long way to go

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