Australia Does Not Have Freedom Of Speech

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“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.

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Comments

    We need to put an end to this two party dictatorship system we have in Australia.

      Liberal
      Labor
      Greens
      Nationals
      Liberal nationals
      Country liberals
      Nick xenephon team
      One nation
      Jackie lambie network
      Justice party
      Liberal democratic
      Australian conservatives

      That's a good 2 parties and that's federal only.

        Oh and ones with elected members. There's about another 50 registered parties with no elected members.

          Would you have preferred some sort of emoji at the end of my comment to let you know that I was taking the piss?

            Yes or better still, greater use of the English language to actually convey sarcasm.

            Truth is I just think you got proven wrong and are trying to recover.

              While I can pick up what you're saying the truth is that we do operate in a two party environment regardless of the number of elected officials. Labour and Liberals both hold the majority of power. Even in the instances where a minor party has a say in something, their voice is still overshadowed by the overwhelming majority. Moreover, the difference in political spectrum of Labour and Liberal is laughable. They are effectively two sides of the same coin, barely differing in stance on so many issues, the term political bickering takes on a whole new meaning.

              On the political compass, both sit firmly in the upper right, the difference between Labor and Liberal, quite literally, being semantics.

              Now, is this necessarily a bad thing...maybe not. However, it does mean that most people have little choice in political arguments. Moreover, the choices we are given are effectively asking for more or less salt on a dish, rather than being offered any other condiment.

              So yes, Australia does have more than two parties, but the two parties with the most power are the only ones being elected, and their ideological and political differences are not that dissimilar.

                Exactly what my jibe was about, but with way more words, "greater use of the English language" as per @Guestwhowould's request, and paragraphs!

                We do have choice. Minor parties are minor because no one votes for them. If they did the parties could then expand influence, get more members, more donations etc. The greens used to be nobodies the nationals used to be huge. It does change, it takes time though parties don't get big over night. The fact that most people vote for the big 2 doesn't make it a dictatorship, the majority rule that's what a democracy is.

                You want to change the balance of power, get out there then. Join a party, promote them all those sorts of things, otherwise it will stay the way it is.

                  I'm a Kiwi, I have no say, even though I've paid $70k (+/- $5k) in tax to the ATO per year for the last 8 years of my life.

                  I highly doubt I will change your mind about any of this, but I will respond for everyone else's benefit.

                  First off, I never said it was a Dictatorship. Australia votes for Parties, not Prime Ministers (some people still don't get that). As such, even in a two party system, our leadership is made up of multiple groups of people.

                  However, the fact is that the two major parties (and the Nationals are effectively the Liberals, hence why they are called the Coalition), are also the two most wealthy, not because they have the most votes, but because they have the richest backers. Any democratic society that has a system setup where a party can be influenced by money, will always end up in a state where the people are voting for who the richest backers want them to vote for.

                  In other words, a Person/Company/Group "donates" a huge capital sum to a party for that party to use in gaining voters, the party in question will inevitably cede their policies to favour their top backers, thus creating a party that is built to gain very specific backing based on "campaign funding." No single person in said party is taking in this money, as the money is a "donation" going to a WHOLE party. However, the party is not going to begin making policy judgements that alienate their top backers, for fear of losing said backing, and therefore votes (due to lack of campaign funds).

                  So, if you get a bunch of rich folks who all have similar ideals and back two parties...those parties will begin to look exactly like one another. Moreover, all the other parties will have less campaign funding, causing their voices to be whispers in the overwhelming choir of the major backed parties. Thus creating a two party system.

                  Once again, not a dictatorship.

                  The argument can be said that if anyone wants to make such a party, then they should donate to their causes, as well. Except how are average Jo-bob and Jane-cat supposed to compete with someone who can donate in six figures? The party will take Jo and Jane's donations, surely, but they will focus their policies around those people who can scream the loudest (the rich backers). Because to do anything else would be silly.

                  Now, backers have to disclose their donations (if they breach a certain threshold), but there are plenty of ways to game the system so that they don't have to do this, donating through multiple sources, corporations, and non-monetary backing. In any case, these backers ensure the parties know what's what, thus keeping policy in a specific boundary.

              I feel as though someone got out of the serious side of bed this morning, eh?

    Ianal, however I do think there is a quite earlier case re the limited political free speech thing that's relevant too. 1950s-1960s sometime the govt tried to ban the Australian communist party. The court basically said no it's a democracy and banning unpopular political parties ain't cool. Govt then tried to change the constitution to let them ban unpopular parties , and in the referendum people voted "heck no". I like to think of that referendum as the day Australia became adults

    Better to have controls around what can't be said than to have some ill-defined "freedom" that ends up just getting the way of the thing you want to do. The Australian Constitution is often impactful for what it doesn't say.

      ^ this

      Are you serious or are you just naive? A very famous American, Ben Franklin once said "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." The ability to have free everything is the essential elements of a free country. Free speech, thought, choice, association, travel, and so many other things are being 'taken away' every day and you make stupid comments like stopping people from expressing their freedom of thought, opinion and speech? Lest we forget that every Anzac day those who died to maintain those freedoms are betrayed by people like you who crave servility and obedience. "They may take our lives but they will never take our freedom' is my attitude and fight many cases over this fact.

        If you want that kind of free speech then you had better be prepared for the consequences.

        For instance pedophiles, necrophiliacs and terrorists would also have the right to free speech.

    Why is this on a tech blog?

      Have you ever read the comments here?

        Have you read the articles ;)

        In all seriousness, there are a ton of things we believe that are in fact wrong. I think we learn too many "facts" from watching US or UK tv shows and somehow assume they apply to us. And even more frustrating, a lot of the "facts" aren't even right in their home countries.

        To be honest, I think the biggest problem with introducing a bill of rights or changing laws to introduce freedom of speech (or anything really) means throwing out more than a century of precedent. So for a number of years court cases are going to be a mess as the wording and intent of the new laws get argued back and forth until there are a bunch of good precedents for lawyers and judges to fall back on. And there are inevitably loopholes that need amending. It'd be a huge cost.

          We do have the laws and precedents you mention so read my post below and just remember that no one uses what they have as rights and I am so tired of people who believe they have privileges and not rights.

      Because it's something that should be posted everywhere and anywhere until the lesson is learned.

      And this hasn't been a tech only blog in ages, thankfully more diverse

    Australia is NOT America... thank fucking god for that!

    What Australia does have is:
    - An implied freedom of speech. there's no specific law, but the boundaries are set. best have a boundary rather than a free for all, then try in vain to curb those who claim the 1st amendment

    - bill of rights. Good laws should cast a shadow of the people of Australia, and if crafted correctly, will have no gaps, or people outside of the shadow. possibly a good idea, possibly not. Obvious gaps in the law or people outside the shadow cast by laws is the Marriage Law. i.e. it is broken! Can a Bill of Rights fix that???

    - political speech. see first point. don't get caught out by slander or libel, these are examples of the boundaries

    - universal obligations - again, see pints 1 and 3

    in short, you can express your thoughts and opinions, rights to protest and all that jazz... just don't over step the boundaries. In America's case, the boundaries are too blurred because of the 1st amendment and subsequent bill of rights. That's why you see groups such as the KKK and neo-Nazi's... a direct result of the 1st ammendment

      Australia already has a Bill of Rights. Check out the Imperial Acts Application Act(s) in Queensland, NSW, Victoria, ACT, WA and the High Court case of Port of Portland v State of Victoria where the Full Bench of the High Court in 2010 upheld the Bill of Rights 1688 especially Section 12 which states “That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void." This is why if you get a speeding or parking fine you send it back and they HAVE to give you a court date. It should also be noted that all Acts from the Magna Carta and Habeas Corpus are STILL IN FORCE (emphasis) in Australia today. The courts break the law by ignoring this and how do they do that? They do not charge you they charge a juridical (artificial person) and if you agree that is you then you have created a joinder and therefore a legal contract exists.Deny the joinder and you have common law rights under the Imperial Acts and as they must follow common law and not statute law you beat them. I fight for both me and my family and friends and won 90% of the time but most people are sheep and dont want the inconvenience so just meekly pay. Know your current existing rights or you dont have any.

        you twit... you have no idea what “That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void." means do you?

    I'll take our anti discrimination laws over American freedom of speech any day

      why? I'd rather be open and honest about people and laws, and then worry about hurt feelings later.

        I've lived in the states - American free speech comes down to who's holding the gun. In Australia, you can say almost anything you want at the very most, someone might punch you in the face. In America - if you speak up against someone who is actually crazy or mentally unstable you might get yourself shot.

        It's not an environment that encourages free speech despite it being in the Constitution.

        People do have the right to be open and honest here - but is there any reason to drag race, sexuality or any hate based language into any or all arguments?

          Ah! but it seems to be only those wanting to have race hate, sexuality phobias and the right to bully anyone they please who are touting for free speech. I guess you already know who they are and which newspaper they are mostly found in.

        Because what we need here is groups like the KKK and Neo-Nazis being alowed to openly spout their hatred. That sounds like a splendid idea!

        You obviously don't have to cope with hate speech on a regular basis

      Provided it's used as a shield and not a sword - see the recent case at QUT for an example of where trying to use it as a sword is a bad application of it (and why Prior failed).

      The laws are fine so long as they're used for defence against actual malicious use - but I fear we're importing this US idea of being perpetually offended regardless of intent and hoping the laws will support us in attacking others. An idea that only certain classes can suffer discrimination.

      I don't want to live in a society where "kill all men" is "hilarious satire", and random rioting and property destruction is "fighting fascism".

        But who was wielding the sword with a free queen's counsel as champion?

    to me free speech is about being able to say my opinion, not having the government lock me or up take me to court over it (Human rights commission/Gillian Triggs etc.) and dealing with the consequences and benefits of that speech.

    This is the tip of the iceberg. Australia has NO freedom to think, choose, associate, travel etc. This socialist government( and it matters not who is in power) has mandated vaccines before child allowance is given, banned a movie entering the country showing a counter position, it has decided to discriminate against smokers by constantly raising taxes, did NOT go to tender for the largest single defense acquisition program even before it was built this being the F35 JSF which is obsolescent even before it goes into service and will get many Australian RAAF pilots killed. So with these examples alone we have attacks on freedom of choice, freedom of movement, transparency of government committing $35 Billion by taxpayers for an American boondoggle that they are responsible for and I have written to countless MPs both State and Federal and they are totally and utterly useless as they do not represent you they represent their corporate masters and vested interests. We desperately need more independents and move away from the party system which fails in every country it supposedly exists in. We are now no more than a vassal state of the USA and their masters Israel.

      If anything I think smokes should be illegal. Its literally a slow form of suicide and man slaughter with second hand smoke. If someone can spew poisonous gas in public, I should be allowed to make a concoction of same elements in a spray bottle, and spray it in the faces of random ppl smoking in public. Smelly bastards.

        When you see someone smoking, perhaps don't let them blow it in your face. Being able to smell tobacco smoke or see it is not the same as blowing it in your face. Your concern for tobacco smoke is strange given you are breathing in far more dangerous emmissions from all of the vehicles on the road.
        Strange how anti smokers all drive cars yet whine about tobacco smoke.
        When you stop blowing your poisen around, i will too.

          Bit hard to stop it blowing in your face when the scummy smokers love to do it at entrances and exits. Little hard to avoid then

      The tinfoil hate wearing conspiracy theorist has arrived! Watch as he spouts false nonsense.

        Finally! I've been reading so many boring sane comments in this thread. It's an anonymous internet political discussion on a tech site people, I demand chem trails and eclipse witch hunts!

      his socialist government( and it matters not who is in power) has mandated vaccines before child allowance is given

      As they should. You want to live in our society? Then you should accept our societies rules. Vaccinate your damn kids. Otherwise go live of a deserted island

      banned a movie entering the country showing a counter position

      The movie was not banned, It was shown. Freedom of speech does not mean you and your fellow loony anti vax nutjobs are expempt from being calling child killers.

      it has decided to discriminate against smokers by constantly raising taxes

      Smokers and their habit is a tax on society. You smoke and smoke and then expect the governement to fund your medical treatment on your lungs when they go shitty. Not to mention the fact your habit is forced upon others like children thanks to second hand smoke.

      freedom of movement

      Since when did the government keep you locked up?

      Essentially @scotoz888, Your a moron and a supporter of killing children. Good job buddy.

    Your right to be not be offended shouldn't overrule my right to speak my opinion.
    It's not my fault you are offended

      It's your fault for offending others.

      By the way it's called bullying.

        having discussions and talking is considered bullying?
        wow - grow up and be an adult

    One thing Freedom of speech advocates forget is freedom of speech does not entitle you to spout what ever you want wherever you want. People are still entitled to tell you to piss off. Freedom of speech does not also mean freedom from consequence of that speech.

    It boggles my mind that people replying to someone calling them out on what they have said are then told they are clamping down on that persons freedom of speech.

      Its not people replying to them that is the issue. The issue is the vocal minority pulling the bigot, racist, homophobe, islamaphobe card and then trying to get them deregistered, kicked out of their job etc.

      It appears to people like me that common sense is seen as bigotry by people who want to be outraged at everything and want the government to have more control over what people say.

        So what if they label you as such? That freedom of speech you love gives them the right to call you as such. And again, freedom of speech =/= freedom of consequence from that speech. If you spout ignorant hatred and get fired for it, it's your own good damn fault. The freedom of speech you want is one where you can spout as much vitriolic hatred as you want and people aren't allowed to call you out on it.

          Never heard so much bullshit in one comment before.

          Who defines what vitriolic hatred is, you?

            Society at large does. If you don't like the fact that society thinks your an intolerant dickhead. Then go live on a deserted island. Sook all you want buddy boy. Freedom of speech does not mean you are free from the consequences of your speech.

              I'd be interested to know what kinds of things you believe are vitriolic hatred?

              Ie. Is voting No vitriolic hatred that you should be fired for? Was the article/memo the chap from google wrote vitriolic hatred? Is the mosque that teaches the parts of the qaran that emphasise conversion or death for infidels, vitriolic hatred?

              Genuinely curious over here.

                Im not an employer. I dont make those kind of decisions. No am i going to justify my views to a random loon on the internet. Im going to repeat this again.

                The kind of speech you want is one were you can spout all the crap you like without people having a right of reply and there being no consuquences for you speech. People calling you a bigot and a homophobe is not clamping down on your freedom of speech. You being fired for what you say is not clamping down on your freedom of speech.

                Freedom of speech gives you the right to say what you want, Not a freedom to choose whatever platform you want.

                As an athiest, I would not get butthurt because a church would kick me out for spouting intolerance of the catholic faith claiming they are all pedophile supporters. They have the right to kick me out. They are under no obligation to have me there as they also have the right to call me a dickhead.

                You like dishing it out Masterc82, But you chuck a sooky la la when you get treated to your own medicine.

                  They were good questions, I wanted to hear your answers too.

                  The bottom line is that we are talking about the difference between subjective and objective classifications. The failure to perceive that one's own subjective likes and dislikes are not universal truths is common enough.

                  What we mean to express, I suppose, when we argue that "vitriolic hatred" is universally what we want it to be, is that we re very normal and that the most normal should rule. Or, perhaps, that we are very special, and that the most special should rule. Either way, we're substituting the actual will of everyone else for ourselves.

                  That is correct. That is the law in Australia. Individuals substitute their own subjective likes and dislikes for the will of the people. We call these folks judges. They sit in courts and tell everyone what is vitriolic hatred, from time to time.

                  If you can influence a judge, or their type, you are the law. The obedience of the population is absolute. An Australian will never, ever criticise a judge.

                  Australia is the best country in the world, you see.

                  And that isn't some subjective opinion, because we don't have those in Australia. No, Australia is the BEST COUNTRY IN THE WORLD, and that is the law.

                  Because an Aussie judge will tell you so.

              Absolutely djbear.

              The only consequences they think about are to them. Well let them think on this.

              Many suicides are the result of hateful, bullying speech. Driving others to suicide is a crime which I suspect will incur increasingly high penalties.

              And when it comes to racist comments such as the ones to Cindy Prior during the QUT case - 5000 pages of them at last count, many advocating her death, torture or sterilization, wouldn't that be incitement to murder?

              It's all about the consequences - are they prepared to face them?

      As long as the consequence of my speech is more speech and discussions, that's fine.

      If the consequence of speech is boycotting, attacks, beatings, and violence, then we have a problem and one being there is no free speech.

    U r welcome to do that but u will get ur head smashed in pretty quickly, and rightly so.

      So does that mean i can physically assault those who smoke near me?

        Yes of course you can. You'll just be physically assaulted back or reported to police.

    Hate to burst all ya bubbles but we are part of the United Nations... Being a member of the United Nations, we are granted equal and inalienable rights granted in the charter.

    Article 19 of the The Universal Declaration of Human Rights;
    Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

    For the rest of the things you are entitled to, please see;
    http://www.un.org/en/universal-declaration-human-rights/

      Read it again Jon Snow.

      It says "this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

      It does not mention speech.

    I don't think that there is a single country on this planet that has freedom of speech.

    Late to the party but freedom of speech is not just about speaking – it is also about listening. Since Australia does not have legally binding freedom of speech I would posit

    1) Australians have nothing of important to say
    2) Australians are not worth listening to

      no, Freedom of speech is not about listening. You can say what you want. I have the right to ignore you and not listen.

        but also, when you say something and a person does listen to you, and for some reason they feel offended by what you said. They should not be able to take you to court because of hurt feelings or because of an insult to their god.

          No, If someone intentionally racially disciminates or racially vilifys you they should be taken to court. Even america has laws against hate speech and discrimination.

    Rights are not granted to you via the government lol. They can be legally protected, but your rights are given to you by God. If you don't believe in God well tough - you still have God given rights.

    In practice, we do have freedom of speech. Have a look at North Korea or Saudi Arabia and you will quickly see just how many freedoms you take for granted. Yes we have a terrible socialist government who would love to take those rights away but they will never be able to. Stop whining like little girls and step out of your bubble, snowflakes.

    Oh and like it or not, Australia is very much like the US. We might as well be a state of the USA. I know I know, you hate that fact with every fibre of your being.

      So where in our constitution does it say we are given these rights under God?
      Or in the UN human rights charter?

    The Bill of Rights 1689 is an English Act of Parliament. It still applies to any commonwealth country, if any aspect be tested by high court it must rule in favour, also 'Magna Carta' English charter of 1215. These are our rights, as royal subjects, until we leave the Monarchy?

    There's an awful lot of comments here on an article that clearly says that we don't have freedom of speech. So please, just STFU everyone. Yes... that includes me. :) /joking

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