We need to protect the implied freedom of political communication

In knocking back a challenge to a NSW law against freedom of communication, the High Court has shown that its sympathies lie with the powerful.

Which is the greater threat: climate change, or climate change activism? Australian governments have made their opinion clear: saving the planet is a far lesser priority than ensuring the morning commute isn’t slowed down.

Our governments are in a race to see who can impose the most draconian consequences on protesters — not just climate activists but anyone who wishes to exercise what they wrongly assume are our entrenched rights to freedom of assembly and speech.

The High Court has not been much of a friend to freedom in recent years, and last week it did it again, when a narrow 4-3 majority knocked back a constitutional challenge to a particularly repressive New South Wales law.

The law in question is the?Surveillance Devices Act?(SDA) which, among other things, makes it a criminal offence (punishable by five years’ imprisonment) to install a camera in a place or vehicle without its owner’s express consent. That’s fair enough, to protect privacy.

Farm Transparency International (FTI) is a not-for-profit which aims to raise public awareness of cruel animal farming practices. One of its tactics is to obtain surreptitiously taken photos and video footage of these practices. Unsurprisingly, like other activists and media trying to expose cruelty to animals, they can’t get the evidence any other way

The?SDA?doesn’t just outlaw the filming; it also makes it a crime to communicate, or even possess, the recordings. These provisions were challenged by FTI on the grounds that they offend the constitutional implied freedom of communication on government and political matters. The battleground was the question that always arises in implied freedom cases: does this law advance a legitimate public policy purpose and, if so, does it go too far by trampling on our freedom to expose and discuss matters of public interest relating to our democratic system of government?

The majority judges saw no problem with this law. It protects the right to privacy of owners of private property, by not just outlawing the secret filming but also the ability to do anything with the results. That creates a deterrent to bothering in the first place.

Their key point was this: the prohibition on filming wasn’t challenged, since everyone accepts that that’s a legitimate and reasonable law. If everyone complies with that law, then the question about communication or possession of the film will never even arise. “It is to be assumed that most citizens will be obedient to the law”, they intoned, so how can it be an impermissibly heavy burden to not allow the fruits of that illegality to be used?

The answer to that should be obvious, and was answered in such terms by one of the minority judges, Justice Stephen Gageler. He harked back to one of the earliest implied freedom cases,?Lange v ABC, for the fundamental point that rule by the majority, “upon which our system of representative and responsible government relies, carries an inherent risk of legislative or executive impairment of the capacity of, or opportunity for, the Australian people to form the political judgments required for the exercise of their constitutional functions. An aspect of that systemic risk is that political communications unhelpful or inconvenient or uninteresting to a current majority might be unduly impeded. The implied freedom of political communication is a structural implication serving to safeguard the efficacy of the system against realisation of that systemic risk”.

In other words, those with power in a democracy have as much reason as those with power in any other system of government to not want information that doesn’t suit them to become publicly known. As Orwell famously said, journalism is printing what someone else does not want printed.

The implied freedom is our only protection against this instinct of government and its patrons, especially in the absence of any legally protected rights such as free speech or assembly.

The deterrent effect of the NSW law on covert filming is real; Gageler pointed to the analogy of criminalising a market for stolen goods as a deterrent on stealing them in the first place. “However,” he says, “the market sought to be dried up by the prohibition in this case is a constitutionally protected ‘marketplace of ideas’”.

Video footage is of course the best evidence of wrongdoing you can ever get, because it cannot be denied. Anyone who saw the illegally obtained footage, broadcast by?Four Corners, of “retired” racehorses being tortured and brutally slaughtered, then sold for dog meat, will never forget it. The NSW laws would seek to ensure that we never saw it, and the High Court would uphold them.

Gageler gets the point: these laws “remove a source of peculiarly communicative true factual information capable of bearing on matters of political and governmental concern. They do so indiscriminately — regardless of the gravity of the information and the extent to which electors, their elected representatives and executive officers may have an interest in receiving it.”

He’s right. I wish more judges were prepared to spend the intellectual energy required to fully appreciate how fundamentally important it is that the secrets the powerful keep be exposed to the daylight, if our democracy-protecting constitution is to mean anything at all.

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