Reminder: Australia Does Not Have Freedom Of Speech

“Free speech” is often raised as a defence in the court of public opinion, particularly when people are called out by their ideological opponents. “You’re attacking my right to free speech!” However, either through forgetfulness or ignorance, many Australians don’t appear to realise free speech is not a legal right they hold.

Australia Does Not Have A Bill Of Rights

The right to free speech has come up frequently in recent times, as the political climate both in Australia and abroad continues to draw heated debate. In the US, individuals often cite their First Amendment rights when they feel they have been censored. Setting aside an analysis of US law, Australia does not have any equivalent. Unlike the US, Australia does not have a bill of rights, and in fact is the only Western liberal democracy not to have one.

There has been some debate regarding whether Australia needs a bill of rights. Arguments for a bill include that by having a reference point, people will be able to more effectively enforce their rights. Arguments against a bill include that by defining rights we would by nature be limiting them. In Kruger v The Commonwealth (1997) 190 CLR 1, Dawson J stated, “The framers [of the Constitution] preferred to place their faith in the democratic process for the protection of individual rights.”

The Australian Constitution does not expressly guarantee many rights or freedoms, though it does guarantee a small handful (such as freedom of trade between the states in s 92). Freedom of speech is not one of them.

Australia Does Have An Implied Right To Political Speech

While Australia does not have an explicit freedom of speech, it does have an implied freedom of political speech. Freedom of political speech was first recognised in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, the High Court of Australia finding this right was implied in Australia’s Constitution. It is the nature of a democratic society to require freedom of political speech, as if the country is to be led by the people (or individuals representing the people’s interests), then the people must be heard, and be able to develop informed opinions.

This cannot be used as a claim to the right of free speech generally. The High Court of Australia subsequently ruled that this implied freedom only protects against laws that infringe upon political speech, which is restricted to matters that may influence voter’s decisions at the poll.

In the case of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, former New Zealand Prime Minister David Lange sued the ABC for defamation, and the ABC raised the implied freedom of political speech as a defence. In a unanimous decision, McHugh J said, “Those sections [of the Constitution that imply freedom of political speech] do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.” Therefore, the implied freedom of political speech cannot be used as a defence to defamation.

Though the Australian government generally cannot legislate to restrict or burden freedom of political speech, there are exceptions. Laws can be made restricting political speech where the law serves a legitimate purpose (in that it is compatible with the maintenance of a representative and responsible government), is suitable to achieve its purpose, is necessary (there is no less restrictive alternative), and the importance of its purpose outweighs the weight of the restriction. If a law fails any of these tests, it is invalid.

However, this is the extent to which the implied freedom of political speech provides protection. It does not protect from an acquaintance shutting you down in conversation, a forum administrator deleting your comments, or an event organiser denying you a platform to speak due to your subject matter. Even if your statements concerned political matters, you are not being rejected due to a law restricting your speech, so your implied right of political speech is inapplicable. You can say what you want, but others are under no obligation to listen or give you a platform.

The Australian government cannot legislate to restrict your freedom of political speech, but you cannot use "freedom of political speech" as a defence.

Australia Does Not Have An Enforceable International Obligation To Uphold Freedom Of Speech

Australia is a signatory to the International Covenant on Civil and Political Rights, which enshrines freedom of opinion and expression at Article 19. However, the main consequence Australia would face were it to ignore the treaty is international condemnation. As demonstrated by Australia's apparent indignation at international condemnation regarding its treatment of asylum seekers, Australia could, in theory, disregard the treaty and restrict such expression with little tangible repercussion.


Though “freedom of speech” has become the rallying cry for those who feel that their opinions are unfairly vilified, there is no clear law that Australians can point to regarding a right to free speech. In fact, Australians are subject to a variety of laws restricting free speech, including defamation laws, hate speech laws, sexual harassment laws, and laws against threatening others. While desirable in theory, truly free speech would open up vulnerable people to intimidation and attack. Some restriction upon speech facilitates the operation of a representative and responsible democracy by fostering an environment in which marginalised people feel safe to speak up.

So the next time your obnoxious uncle comes to visit and starts in on a racist rant, kindly remind him that free speech isn't a thing in Australia. And regardless of the state of Australian law, you're still well within your rights to kick him out of your house.


This story has been updated since its original publication.


Comments

    Great article. When I explain this topic to friends here and overseas they are often surprised and sometimes refuse to believe me (kind of like how we actually don't have an official language, just a most commonly spoken one). Thank you for explaining it in such detail.

    then it is time to change the laws for speech equality
    censors can go stuff themselves

      Do you think "freedom of speech" is threatened in Australia? That we really have it bad here so we need it? For all I can tell, the only thing that such "right" has done for America is allowing all kinds of hate speech to thrive.

        Yes. At both a federal and state level we are seeing attempts to restrict criticism of the government. The government are happy for us to act like we have free speech, until we use our speech to shine a light on government corruption and abuses.

    It's always fascinating to me that the people who demand "free speech" the loudest then claim they are being "vilified" when someone disagrees with them. In reality, aren't they actually attempting to limit someone else's free speech. If "free speech" exists, it doesn't protect you from consequences or from being questioned on your beliefs. If you believe free speech means that no-one can challenge you, then you don't really believe in free speech.

    I'm not suggesting the article is making this claim. Just an observation.

    Last edited 06/09/17 2:29 pm

      >being questioned on your beliefs
      that's the whole point of free speech, to be able to discuss topics of contention, and the reason there is so much friction now is because so many important topics have been kept outside the realm of rational conversation

      >it doesn't protect you from consequences
      people keep repeating this, and it's just a way of telling people to shut up or they will get in trouble, that is a threat

        Like everything, I think you are right about the "consequences" argument in some cases. But let me give an example where it isn't: Say someone is a guest in my home and they say something that is clearly homophobic, or racist, or personally insulting to my wife. They are certainly exercising their "free speech", but they will also be asked to leave. Their freedom does not override my freedom to kick them out. They are not free from those consequences. In this case, they can leave or they can "shut up or they will be in trouble". I'm free too, right?

      Yep, it usually goes like this:

      Speaker 1: [Horribly hateful thing]
      Speaker 2: Hey, that's not really a good thi-
      S1: WHAT? Are you trying to censor me? I have rights, you know!
      S2: Yes, I know; all I'm trying to say is that you shouldn't-
      S1: Shut up, shut up! Your censorship is not allowed here in the land of the free, Stalin!

        Except that isn't what most people have an issue with. People take issue with the insane political polarisation where we have to label anyone who doesn't agree with us as a Nazi or SJW, and seek to deplatform the other side so they can't push their viewpoint.

          That's a fallacy. Surely there are some isolated cases were an idiot calls someone he disagrees with a Nazi, but most of the times, the word is reserved for you know, Nazis, or those who think dangerously similar.

            That's a fallacy - and you've demonstrated it by including the 'dangerously similar' line, a qualifier ripe for abuse. Not everyone who leans right is a Nazi, and not everyone who supports state welfare is a communist SJW.

              *sigh* See how you had to add your own interpretation for my "dangerously similar" remark (everyone who leans right) to prove your point? No, I meant truly /similar/ as in "whites are superior/genocide is not unthinkable/etc." (Words directly lifted from statements by Alt-right influential speakers).

                I know I'm going to get hate for this but it needs to be said.

                If someone wants to say "whites are superior" then let them. Then ask them to prove it. Back up your statement with logical, irrefutable evidence. The statement alone should not be considered offensive on taboo. It should be considered in context and based on evidence.

                If the statement can't be backed up then they can still say it, but they should expect to have their argument torn down. They should also expect that if they can make that (baseless) statement another group has the same right to make a conflicting statement.

                  This is a nice and noble thing to think. However, you must understand something: people with such level of discriminatory beliefs are not going to play by your polite and logical rules. At best, your rules will be mocked as the kind of weakness and inferiority that they already dismiss; at worse, they will take full advantage of the time that your setting up a conversation is buying them to move against you and strike when you were not expecting it.

                  If they truly believe whites (or men, or straight people, etc) are superior/"normal"/godly/etc. whatever argument you try to present against it is by their principle already flawed if you are not one of their kind or if you are but sympathise with the other groups.

                  Ask them to "prove" that whites are superior? Yes, they will do that if you let them, but not by logic, but by eradicating or crushing anything that is not. They are buying weapons and gaining political power, all while you prepare a well-thought "conflicting statement" that disproves their point.

                  I agree Skrybe
                  But It defeats the purpose to waste your time on the basis of a few words that are clearly wrong, dont empower them treat the comment with the same respect, not worth responding too, they wont listen to lodgic anyway!
                  BillyBunt "opinions are like ass hole's everyone like to show they have one and most think there's dont stink"

                  Last edited 08/09/18 4:06 am

                Words directly lifted from statements by Alt-right influential speakers
                Not disagreeing, just wondering who said this and what makes them 'alt-right'? Because so far I've seen alt-right apply to people who are actual far-right fascists, and people who have nothing to do with Nazism but disagreed with far-left politics and have been labelled Alt-right by Antifa idiots.

                  Is this some sort of a trick question? Those words were said by the very same person who coined the term "alt-right", and who is one of their ideology leaders, Richard Spencer.

                  Now my turn to ask a question: Even assuming that you were truly ignorant of this, why when somebody says "yes, there are people who nowadays still uphold the Nazi ideals", your first instinct is to chalk it to overreacting or lies by their opposition, rather than believing that it may be true?

    Australia does have a bill of rights, the Bill of Rights Act 1688 (UK), inherited at the time of federation.

    It would not be difficult to also reference relevant high/supreme court rulings on the topic that have been made in other Commonwealth countries

    When "free speech" is applied across the board it invariably leads to the loud and obnoxious having freedom and the quiet, the underrepresented and the timid being VIGOROUSLY repressed because the created environment automatically allows them to be shouted down and over due to their natural quietness, calmness and the time and consideration they take to speak. "Free speech" implemented without intelligence and qualification becomes only "Free speech for the loud and/or dumb" which is what we see happening all over the place at the moment.

    I suspect the reason many Aussies think we have free speech is because we're so inundated by American media. Aussies have become confused about what rights we actually have since they see various rights repeated in TV shows and movies and forget they stem from a completely different country.

    "Free anything" what a pipe dream regardless of a bill of what? " RIGHTS" that's as much of a pipe dream that "FREE" is!
    more like we have what big buisness allows us to have or the disease like manipulation Facebook shows we dont have; A CHOICE!

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