Australia is a democratic country and most Australians grow up thinking we have a right to “free speech”. Kids start using the phrase from primary school age, mostly to defend their experimental use of naughty words.
“You can’t tell me to go to my room! I have a right to freedom of speech!”
But is this really true?
In America, the US Constitution includes a Bill of Rights that explicitly protects freedom of speech. The First Amendment states:
“Congress shall make no law … abridging the freedom of speech, or of the press …”
Perhaps Aussie kids got the idea from watching American TV shows that we also have a right to freedom of speech. But Australian law is quite different.
Do we have a right to free speech in Australia?
The simple answer is no.
Australia has no Bill of Rights and no explicit right to freedom of speech in our Constitution. But we do have an implied right to freedom of speech that has developed in our legal system.
The implied freedom of political communication
The High Court has recognised that our Constitution implies a right to free speech when we’re talking about political matters.
In the cases of Nationwide News Pty Ltd v Wills (1992) and Australian Capital Television v Commonwealth (1992), the High Court of Australia recognised that our Constitution requires the government to be elected by its people. Therefore, in order to make informed electoral choices and for Australian democracy to function, those people need to be able to freely discuss their thoughts and opinions on politicians, policies and parties.
The High Court narrowed this implied right in the later case of Lange v Australian Broadcasting Corporation (1997), ruling that the relevant sections of the Constitution “do not confer personal rights on individuals”, and that the implied freedom simply works to prevent the government from making laws that would threaten political communication.
In other words, a law that takes away our freedom to communicate about political matters would be unconstitutional.
There are some protections of free speech under international law.
Article 19 of the UN’s International Covenant on Civil and Political Rights (ICCPR) states that “Everyone shall have the right to freedom of expression”. Australia ratified this convention in 1980 and is one of almost 170 countries who are now party to it.
However, while the ICCPR provides guidance to our government from the international community on human rights, the covenant is not binding “law” unless Australia adopts its provisions into domestic law. So far, we haven’t done this.
Other exceptions to free speech
There are also a number of laws that prohibit some types of speech and can be seen as interfering with free speech. These include criminal laws, secrecy laws, contempt laws, anti-discrimination laws, media and telecommunications laws, information and intellectual property laws.
According to the Australian Law Reform Commission, there are more than 30 laws that interfere with free speech in Australia. For example, section 80 of the Commonwealth Criminal Code sets out a number of terrorism-related offences that make it a crime to urge violence, treason or advocate terrorism against Australia.
Anti-discrimination laws protect people from discrimination, but they also restrict free speech by making it unlawful to say things that could offend, intimidate or harass people based on things like their race, age, gender or disability.
In other words, we can enjoy freedom of expression, but not freedom to offend.
So, where does that leave us?
In the absence of a Bill of Rights, Australians’ right to free speech is limited and precarious – if you can say we have a “right” at all. There are many exceptions to our implied right and there’s even a law that can make you a criminal for swearing …
What we can take away from all this is that the unanimous Lange decision in the High Court provided some certainty to free political communication in Australia. Our Constitution requires this for the democracy to function. However, in the absence of a Bill of Rights, the Australian government can pass new laws that override our implied freedom.
Depending which way you look at it, Australians’ right to freedom of speech relies on – or is at the mercy of – our government.