This week, the ABC TV show 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 breach the 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-funding. 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 doesn't 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, Attorney-General George Brandis ordered this year that all requests for the Solicitor-General's opinion be approved by him. We're unsure whether the Solicitor-General's opinion on the border protection gagging provisions was sought by Brandis or Immigration Minister Peter Dutton before it was enacted, or if Brandis would allow his opinion to be sought now. It's 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's not the political aim of this law. Its aim is to intimidate people into silence, and particularly to intimidate people into not talking to the media. The government really doesn't want this act litigated.

The act still applies to people other than doctors, such as teachers, guards and journalists. The government argues 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. It was put best by the High Court majority judgment in the Theophanous case in 1994.

The court said: "Because the system of representative government depends for its efficacy on the free flow of information and ideas and of debate, the freedom extends to all those who participate in political discussion. By protecting the free flow of information, ideas and debate, the constitution better equips the elected to make decisions and the electors to make choices and thereby enhances the efficacy of representative government."

That would apply especially to the exposé of cruel treatment of children under Australia's care. The more widely it's shown, the more people will demand that their elected representatives stop it. To the extent that the act's gagging provisions stop that free flow of information, they are unconstitutional.

Bring on the prosecution.

The case brought by Doctors for Refugees tried to avoid the "no-hypotheticals" argument. They say the mere presence of the law (even without a prosecution) intimidates them into ignoring their ethical duty to their patients by speaking out against their mistreatment.

But the case probably won't go ahead.

As for the teachers, the government won't prosecute and run the risk of the law being struck down. And any private prosecution would be taken over by the Attorney-General and discontinued.

In the meantime, this nasty "law" continues to have its chilling effect: the constitutional mechanism for better equipping politicians to behave decently is defeated, and the children suffer.

That's unless enough more brave journalists, teachers, guards and others defy the law so that it loses its effect, or the government decides to prosecute in an attempt to prop up the indefensible.

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The people of the ACT have voted clearly in favour of good rail public transport. Polling booths in Gungahlin, which will benefit most and earliest from light rail, swung massively to Labor.

Maybe there's a lesson for other jurisdictions, especially NSW. Build rail rather than more freeways, which just add to congestion rather than fix it.

Sydney trashed its trams in the 1960s and, ever since, has favoured freeways over rail. The cost of traffic congestion in Australia continues to grow. It's bad economics.

We should be heeding the advice of Reserve Bank governor Philip Lowe that governments should use low interest rates to borrow to invest in infrastructure. That would be more effective in producing economic growth than cutting interest rates or company taxes.

crispinhull.com.au