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News Corp journalist Annika Smethurst's case looms as a major constitutional test.Credit:Dominic Lorrimer

In April 2018,Smethurst revealed an internal proposal to expand the domestic role of electronic intelligence agency the Australian Signals Directorate. The story was based on leaked documents and the police search warrant cited the section of the Crimes Act that prohibits unauthorised release of official secrets.

Smethurst's legal team contend that,while there is a legitimate need for some level of secrecy,the current law allowed for the illegitimate purpose of protecting governments from embarrassment and"government secrecy as an end in itself".

The constitution's implied freedom of political communication is based on the premise that Australian citizens should be armed with all the information needed to make legitimate decisions in elections.

Adrienne Stone,a constitutional law professor at the University of Melbourne,said the case could be significant as an opportunity for unprecedented clarity on the implied freedom.

"The stakes are quite high,"said Professor Stone."This is the first time we will get a feel from the High Court as to what it sees as the balance between freedom of political communication on one hand and government interests in national security on the other."

She said the judges could decide the law was valid,they could strike it down as too broad,or they could go in a third direction and take a more narrow interpretation.

"I think if the High Court upholds a reading of the relevant section that really means the government can suppress any information it wants to,then we would be in a position that this doctrine is doing very little to uphold our democracy,"she said.

George Williams,dean of the law school at the University of NSW,said it was a major test case for press freedom.

"There have been very few instances upon which the High Court has ruled on press freedom and none more important than this,"he said.

"It has just never arisen as centrally in any other case and so it will be really the first major opportunity for the High Court to expound upon where press freedom sits in light of this implied freedom of political communication."

Professor Williams said the court could also avoid taking up the opportunity for a sweeping judgment on major legal principles and instead make a more conservative decision on different grounds.

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