Eleanor Finch
Australia does not have explicit freedom of speech in its Constitution or a statutory declaration of rights. However, the High Court has inferred a freedom of political communication from sections 7 and 24 of the Constitution, which requires members of Parliament to be 'directly chosen by the people'. This freedom of political communication is not a broad freedom of speech as in other countries, but rather a freedom that only protects political free speech from government prosecution. While Australia is a signatory to international treaties that protect freedom of expression, these provisions have not been implemented into law and are therefore not enforceable by Australian courts.
| Characteristics | Values |
|---|---|
| Freedom of speech in the Australian Constitution | Not explicitly stated |
| Freedom of expression | Implied, not explicit |
| Freedom of political communication | Protected from criminal prosecution at common law |
| Right to hold opinions without interference | Cannot be subject to any exception or restriction |
| Right to freedom of opinion and expression | Contained in articles 19 and 20 of the ICCPR |
| Right to freedom of religion | Section 116 of the Constitution |
| Right to trial by jury | Section 80 of the Constitution |
| Right to freedom of information | Subject to restrictions for public order, national security, and protection of morals |
| Right to free speech | Protected by international law through the International Covenant on Civil and Political Rights |
| Right to freedom of speech in a Bill of Rights | Proposed, but not implemented |
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What You'll Learn
Implied freedom of political communication
The Australian Constitution does not explicitly mention or protect freedom of expression or speech. However, the High Court has inferred a freedom of political communication from sections 7 and 24 of the Constitution, which require that members of Parliament be 'directly chosen by the people'. The Court found that for this to be an informed choice, there must be free access to relevant political information. This implied freedom of political communication is not a personal right but a restriction on the government from infringing upon the freedom to discuss government, its institutions, and political matters.
The implied freedom of political communication is not absolute. It exists only to the extent necessary to protect the system of government reflected in the constitutional text. This means that a law can interfere with communication about government or politics without breaching the implied freedom if the law does so for a legitimate aim and is generally proportionate to that aim. The legitimate aim question asks whether the purpose of the law and the means adopted to achieve it are 'legitimate', in that they are compatible with the maintenance of the constitutionally prescribed system of representative government.
In Lange v Australian Broadcasting Corporation (1997), the High Court clarified that the implied freedom of political communication was a right that extended beyond the period of elections to ensure that a well-functioning democracy is maintained at all times. However, the Court also qualified that this right is not absolute, as it only extends to matters indispensable to maintaining representative democracy. Their Honours found that this right to communication does not extend to malicious statements. This decision altered the defence of qualified privilege, which permits those in positions of authority to make statements that would usually be considered slanderous. The Court established a measure to consider whether it is reasonable for a publisher to print potentially defamatory statements.
In Australian Capital Television Pty Ltd v Commonwealth (1992), the High Court held that the implied freedom of political communication exists as an incident of the system of representative government established by the Constitution. The case involved Australian Capital Television seeking a declaration that the Political Broadcasts and Political Disclosures Act 1991 (Cth) was invalid, as it prohibited the broadcasting of political advertisements on electronic media. The Court found that the laws did encroach upon this right as there was an ambiguity over what constituted a business premise. The justices ruled that the Protesters Act placed a dramatic burden on political communication due to the excessive powers it bestowed on the police. They further set out that the laws were discriminatory as they only targeted activists.
In Kerrison v Melbourne City Council, the Full Court of the Federal Court held that the presence of protestors who were part of the 'Occupy Melbourne' movement in a public park was a form of political communication.
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Freedom of speech and the constitution
Australia does not have explicit freedom of speech in any constitutional or statutory declaration of rights. There is no list of personal rights or freedoms that may be enforced in the courts. The Australian Constitution does not explicitly protect freedom of expression or create a right to freedom of speech. Instead, Australia's freedom of speech protections are considered to be "'implied' protections" and are rooted in case law interpreting the Australian Constitution and international conventions to which Australia is a party.
The High Court has inferred a freedom of political communication from sections 7 and 24 of the Constitution. These provisions require that members of Parliament be "directly chosen by the people". The High Court found that for this to be an informed choice, there must be free access to relevant political information. This freedom of political communication is not a broad freedom of speech as in other countries, but rather a freedom that only protects political free speech. It is a shield against government prosecution, not a shield against private prosecution (civil law).
The Australian Constitution, by providing for a system of representative and responsible government, implies the protection of political communication as an essential element of that system. The Court has recognised that this implied freedom can be limited or burdened, but only by laws that are reasonably appropriate and adapted to serving a legitimate end in a manner compatible with Australia's system of representative and responsible government.
The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR). Article 19(1) states that everyone shall have the right to hold opinions without interference and Article 19(2) protects the freedom of expression in any medium, for example, written and oral communications, the media, public protest, broadcasting, artistic works, and commercial advertising. Article 19 emphasises that freedom of expression and opinion are the foundation stones for a free and democratic society and a necessary condition for the promotion and protection of human rights.
There have been attempts to legislate for a Bill of Rights that would incorporate provisions of the ICCPR, including Article 19, into Australian law. However, no government has implemented the free speech provisions, and they are not enforceable by Australian courts.
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Limitations on freedom of expression
The Australian Constitution does not explicitly protect freedom of expression, and there are limitations that can inhibit creative freedom. While the High Court has inferred a freedom of political communication from sections 7 and 24 of the Constitution, this implied freedom can be limited by laws that serve a legitimate end compatible with Australia's system of government.
There are several limitations on freedom of expression in Australia. Firstly, the law prohibits speech that incites crime, violence, or mass panic to protect public order and safety. This includes restrictions on pornographic material, particularly concerning minors, to uphold public morality. Secondly, Australia has discrimination and anti-vilification laws to prevent radicalisation, protect social cohesion, and safeguard vulnerable groups from hateful speech. These laws set boundaries for conduct that incite hatred, contempt, or ridicule based on race, ethnicity, disability, religion, or sexuality. Thirdly, there are defamation laws that aim to balance free speech with an individual's right to protect their reputation from indefensible attacks. Fourthly, Australia's National Classification Scheme provides consumers with information about publications, films, and computer games to make informed decisions about appropriate entertainment, especially for children. Finally, artists may face additional limitations due to content classification requirements by various authorities, such as the Classification Board, the Australian Communications and Media Authority (ACMA), and industry associations like ARIA and AMRA.
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Freedom of speech in legislation
Australia does not have explicit freedom of speech in any constitutional or statutory declaration of rights. The Australian Constitution does not explicitly protect freedom of expression, and there is no Commonwealth legislation enshrining a general right to freedom of expression. Instead, Australia's freedom of speech protections are considered to be "implied" protections and are rooted in case law interpreting the Australian Constitution and international conventions to which Australia is a party.
The High Court has inferred a freedom of political communication from sections 7 and 24 of the Constitution, which require that members of Parliament be "directly chosen by the people". The Court found that for this to be an informed choice, there must be free access to relevant political information. This freedom of political communication is not a broad freedom of speech as in other countries, but rather a freedom that only protects political free speech. It is a shield against government prosecution, not a shield against private prosecution (civil law).
The Australian Constitution addresses freedom of speech in a unique way. Unlike most constitutions, it doesn't have a provision that explicitly states that there shall be freedom of speech, or that everyone has the right to freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution.
Proposals for legislating for freedom of speech have been made mainly in the context of legislating for a Bill of Rights. Since 1973, there have been attempts to incorporate provisions of the International Covenant on Civil and Political Rights (ICCPR), including Article 19, into Australian law. Various governments, parliamentary parties, and individual members of parliament have introduced legislation to establish a statutory Bill of Rights, which would include the right to freedom of speech.
While Australia does not have explicit freedom of speech in its Constitution or legislation, it is a party to several international human rights treaties that protect freedom of opinion and expression. These include Article 19 of the ICCPR, articles 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), articles 12 and 13 of the Convention on the Rights of the Child (CRC), and article 21 of the Convention on the Rights of Persons with Disabilities (CRPD).
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International law and freedom of speech
International law protects freedom of speech as a human right. Article 19 of the Universal Declaration of Human Rights (UDHR) states:
> 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.
The right to freedom of opinion and expression is also enshrined in other international and regional human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Elimination of All Forms of Discrimination Against Women.
However, there are instances where speech can be legitimately restricted under international law, such as when it violates the rights of others or advocates hatred and incites discrimination or violence. For example, anti-protest laws in Australia and the United States threaten the ability of people to stand together and express their views. Additionally, metadata retention laws can jeopardize press freedom by undermining the confidentiality of journalists' sources.
The rise of the internet has also posed challenges to freedom of speech, with governments seeking to regulate cybercrimes and misinformation. Ethiopia, for instance, has passed a controversial social media law that restricts online speech, and Nigeria is considering a similar measure. The use of sophisticated surveillance technology on mobile phones has also led to restrictions on freedom of expression.
Despite these challenges, defending freedom of expression remains crucial for the protection of other human rights. As stated by Amnesty International, freedom of expression helps protect all our other rights. For instance, freedom of speech, along with freedom of assembly and association, is necessary for the effective exercise of the right to vote.
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Frequently asked questions
No, Australia does not have explicit freedom of speech in its constitution.
No, there is an implied freedom of speech in Australia, which was recognised in Lange v Australian Broadcasting Corporation. This freedom of political communication is a shield against government prosecution, not a shield against private prosecution (civil law).
Explicit freedom of speech is entrenched in the constitution and cannot be amended or removed by any government without the overwhelming approval of the people voting at a referendum. Implied freedom of speech is susceptible to erosion by laws that explicitly restrict freedom of speech and expression.
As of 2025, Gerard Rennick People First, Pauline Hanson's One Nation, and the Libertarian Party have policies to hold a referendum on enshrining freedom of speech in the Australian Constitution.
