The courts will consider 3 questions when they determine whether the law that supported the AFP raids violates the implied freedom. It is far from clear whether the media organizations' challenges will pass this three-stage test.The first question is whether the law burdens political communication. In this case, the burden is unclear.
While some may criticise the AFP raids as reflecting an illegitimate purpose of targeting journalism critical of the government, the warrants also undoubtedly had a legitimate aim: the maintenance of national security by ensuring the integrity of government secrets.This third stage of the test is the trickiest. It asks whether the restriction on political communication is justified and proportionate in light of its legitimate purpose.
In the context of the AFP raids, the present threat to national security posed by the published articles appears to be weak. On one view, the burden on political communication was severe and arguably unjustified, provided the court accepts the chilling effect that the raids will have on journalists and whistleblowers.
But the implied freedom is not a right to free speech or a free press. It hinges on the concept of"justification," and when national security is placed on the scales it is difficult to find a counterweight to meet it. Hence national security is regularly invoked to justify infringements of our basic rights and freedoms, and it is difficult to know how and when these infringements are unnecessary.