“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.
This article was originally published in September 2017 - but still holds true today.
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 an 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.