LET’S hope ABC Four Corners journalist Debbie Whitmont and teachers Tracey Donehue and Gabby Sutherland are prosecuted under the 2015 Australian Border Protection Act which provides for up to two years jail for disclosing “protected” information about Australian immigration detention centres.

This week, Four Corners exposed the horrible cruelty and what can only be termed torture of children on Nauru.

The children have lost their Australian teachers and been sent to schools on Nauru. The children, initially bright and inquisitive, according to the teachers, are now in a state of hopeless despair.

On its face the Four Corners program would probably be in breach of the Border Protection Act. Unfortunately, though, a prosecution is unlikely.

I say unfortunately because if there were a prosecution, the defendants would be legally represented by some of Australia’s best legal talent either for free or by crowd founding.

And if prosecuted, these odious laws would be put to the constitutional blowtorch. The question would be whether the Act offends the freedom of political communication implied in the Constitution.

A prosecution is even more important now that the Government has effectively taken the wind out of the sails of one High Court challenge to the law – by Doctors for Refugees.

This week the Government – fearful of that case getting an airing – artfully exempted doctors from the gagging provisions, but left them in place for everyone else.

That case was probably flawed anyway because there was no prosecution, so it was more in the realm of the hypothetical than a case where rights are affected.

The High Court does not do hypotheticals. It has held it has no jurisdiction to deliver binding hypothetical opinions on the constitutional validity of state or federal laws. The Constitution gives the High Court jurisdiction only in “matters”. And the court has interpreted “matters” as genuine disputes or prosecutions.

Of course, if you want a reliable idea as to the likely constitutional validity of a proposed law, you seek the independent legal advice of the Solicitor-General.

However, the Attorney-General, Senator George Brandis, ordered this year that all requests for the Solicitor-General’s opinion be approved by him. We are not sure whether the Solicitor-General’s opinion on the Border Protection gagging provisions was sought by the Attorney-General or the Immigration Minister before it was enacted, or if the Attorney-General would allow his opinion to be sought now.

Another reason to hope for a prosecution to test the waters.

The Four Corners journalist and teachers, of course, have done the morally right and courageous thing in not being intimidated by this law.

But they should have no fear of prosecution. That is not the political aim of this law. Its aim is to intimidate people into silence, particularly to intimidate people into not talking to the media.

The Government really does not want this Act litigated.

The Act still applies to people other than doctors, such as teachers, guards and journalists.

The Government argues that the Act provides for the uncovering of malfeasance with protection for people reporting to “proper authorities”. But as we know “proper authorities” happily ignore complaints or sweep them under the carpet and the malfeasance continues or goes uncorrected.

The normal pattern is that only wide media coverage results in action because only then are politicians’ votes at risk.

This brings us back to the reason for the implied freedom of political communication.