Isabella Carter
The Australian Constitution does not explicitly mention a right to freedom of speech or freedom of expression. However, the High Court has inferred an implied 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 implied freedom is not an individual right, but rather a restriction on laws that interfere with free communication about government and politics. It exists to protect the system of government reflected in the constitutional text and can be limited by laws that serve a legitimate end compatible with Australia's system of government. This interpretation of freedom of speech in Australia differs from the absolute right to freedom of speech guaranteed by the First Amendment to the United States Constitution.
| Characteristics | Values |
|---|---|
| Does not explicitly protect freedom of expression | The Australian Constitution does not explicitly protect freedom of expression |
| Implied freedom of political communication | 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 |
| Not an individual right | The implied freedom of political communication is not an individual right, but restricts laws that interfere with free communication about government and politics |
| Limitations | Limitations include defamation, anti-vilification, classification and censorship laws, and the treason and urging violence offences |
| Not absolute | The implied freedom of political communication is not absolute, but exists only to the extent necessary to protect the system of government reflected in the constitutional text |
| Legitimate ends | Legitimate ends include the protection of reputation, the prevention of physical injury, the prevention of violence in public places, the prevention of corruption in elections, and ensuring the safety, well-being, privacy, and dignity of women attempting to access abortion services |
| Not a settled idea | According to Professor Stone, many people think that there is a settled idea about what freedom of speech is, but in reality, it operates over a limited field and determining the boundaries is challenging |
| International Covenant on Civil and Political Rights | Australia is a signatory to the International Covenant on Civil and Political Rights, which includes the right to freedom of opinion and expression in Articles 19 and 20 |
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What You'll Learn
- The Australian Constitution does not explicitly protect freedom of expression
- The High Court infers a freedom of political communication
- Limitations on freedom of expression
- Freedom of expression and opinion as the foundation stone for a free and democratic society
- The implied freedom of political communication is not an individual right
The Australian Constitution does not explicitly protect freedom of expression
The High Court has interpreted sections 7 and 24 of the Constitution, which require members of Parliament to be 'directly chosen by the people', as implying a freedom of political communication. This freedom is seen as indispensable to the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, allowing for informed choices by the people. However, this implied freedom is not absolute and can be limited by laws that serve a legitimate end compatible with Australia's system of government.
While Australia does not have an explicit constitutional right to freedom of expression, it is a signatory to the International Covenant on Civil and Political Rights. This covenant includes Article 19, which protects the right to hold opinions without interference and the right to freedom of expression. Additionally, the Australian Human Rights Commission recognises the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers or medium.
It is important to note that freedom of expression is not unlimited, even in a democratic society. In Australia, limitations on freedom of expression include defamation, anti-vilification, classification and censorship laws, and offences related to treason and urging violence. The limitation in Article 19(3) justifies prohibitions on speech that incite crime, violence, or mass panic, provided they are reasonable and necessary to protect public order. Additionally, any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence is prohibited by law.
In conclusion, while the Australian Constitution does not explicitly protect freedom of expression, it implies a freedom of political communication that is integral to the democratic system. Australia's commitment to international human rights treaties and recognition of the right to freedom of expression by organisations like the Australian Human Rights Commission further emphasise the importance of this fundamental democratic value. However, it is essential to understand that freedom of expression has limitations to prevent harm and protect the rights and reputations of others.
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The High Court infers a freedom of political communication
The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has inferred a freedom of political communication from sections 7 and 24 of the Constitution. These sections require that members of Parliament be "directly chosen by the people". The High Court reasoned that for this choice to be informed, there must be free access to relevant political information. This freedom of political communication is not an individual right but a restriction on laws that interfere with free communication about government and politics.
The High Court has held that this implied freedom of political communication is an indispensable part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint. This freedom has been used by the Court to declare invalid Commonwealth laws that prohibited the broadcasting of political material in the lead-up to elections and obliged broadcasters to provide free advertising time to political parties during election periods.
The implied freedom is not absolute and can be limited or burdened by laws that are reasonably appropriate and adapted to serving a legitimate end. 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. Examples of legitimate ends include the protection of reputation, the prevention of physical injury, the prevention of violence in public places, the prevention of corruption in elections, and ensuring the safety, well-being, privacy, and dignity of women attempting to access abortion services.
The scope of what constitutes a "political matter" under this implied freedom is not entirely clear. However, it appears to include communications that could reasonably bear upon voting behaviour in federal elections, extending to State or Territory politics and the actions of public officers. The High Court has clarified that personal communications concerning reproductive choices aimed at women entering abortion clinics are not considered "political" communications. Nevertheless, political communication can encompass a range of non-verbal communication, including signs, images, actions, and even mere presence in a physical location.
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Limitations on freedom of expression
The Australian Constitution does not explicitly protect freedom of expression. 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'. This freedom of political communication is understood as a freedom from government restraint, rather than a right conferred directly on individuals. The Court has recognised that this freedom can be limited by laws that are reasonably appropriate and adapted to serving a legitimate end, in a manner compatible with Australia's system of government.
There are several limitations on freedom of expression in Australia. Firstly, any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence is prohibited by law. This includes the criminalisation of participation in organisations that promote and incite racial discrimination. Secondly, there are restrictions on certain types of speech to prevent radicalisation, violence, and activities that incite hatred, such as the recent expansion of an offence for advocating terrorism. Thirdly, there are limitations on the publication or broadcast of offensive material, such as pornographic material depicting minors, which is restricted based on public morality.
The Australian Federal Police Act 1979 (AFP Act) also plays a role in limiting freedom of expression. While the Minister can issue directions under Section 37 of the AFP Act, it would be unlawful for them to direct investigation decision-making in a particular case. The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 has introduced thresholds for offences related to the public display of prohibited symbols, which may also limit freedom of expression.
Additionally, defamation laws aim to balance free speech with the right of an individual to protect their reputation from indefensible attacks. Artists may also face limitations on their freedom of expression due to classification requirements based on the medium, content, and usage of their work. These works may be subject to different classification systems, such as the Classification Board for films and the Australian Communications and Media Authority (ACMA) for television and radio. State and territory statutes that define child pornography, obscenity, and indecency further impose limits on freedom of expression.
While Australia's Universal Periodic Review in 2011 committed to establishing a systematic process for reviewing reservations to international human rights treaties, it is important to recognise that there is no Commonwealth legislation enshrining a general right to freedom of expression.
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Freedom of expression and opinion as the foundation stone for a free and democratic society
Freedom of expression and opinion are considered the foundation stones of a free and democratic society. In Australia, the Constitution does not explicitly mention a right to freedom of speech, unlike the First Amendment to the United States Constitution. However, the High Court of Australia has inferred a freedom of political communication from sections 7 and 24 of the Constitution, which require members of Parliament to be "directly chosen by the people". This freedom of political communication is seen as an indispensable part of the system of representative government created by the Constitution.
The Australian Constitution's implied freedom of political communication restricts laws that interfere with free communication about government and politics. This freedom is not an individual right but rather a freedom from government restraint. It allows for open discussion of political matters and ensures informed choices during elections. The High Court has recognised that this implied freedom can be limited by laws that serve a legitimate purpose and are compatible with Australia's system of government.
While Australia does not have an explicit right to freedom of speech in its Constitution, it is a signatory to the International Covenant on Civil and Political Rights, which includes the right to freedom of opinion and expression in Article 19. Additionally, the Australian Human Rights Commission recognises the importance of freedom of expression and information as fundamental rights. The Commission's project, "Free and Equal: An Australian Conversation on Human Rights," proposes a Human Rights Framework to ensure that all people are treated with dignity, justice, and respect.
Freedom of expression is not without limitations, and it comes with certain responsibilities. In Australia, limitations on freedom of expression include defamation, anti-vilification, classification, censorship laws, and offences related to treason and urging violence. Additionally, any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence is prohibited by law. These limitations aim to balance freedom of expression with respect for the rights and reputations of others, as well as the maintenance of public order, national security, public health, and morals.
In conclusion, while Australia's Constitution does not explicitly mention freedom of speech, it implies a freedom of political communication that is essential for a democratic society. This freedom is balanced with certain limitations to protect the rights of others and maintain public order. Australia's commitment to freedom of expression is further strengthened by its international obligations and the work of human rights commissions, ensuring that expression and opinion can flourish while respecting the rights and freedoms of all citizens.
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The implied freedom of political communication is not an individual right
The Australian Constitution does not explicitly protect freedom of expression. While freedom of speech is considered a central democratic value, the Australian Constitution does not contain a provision that expressly guarantees this right. Instead, the High Court has interpreted an implied freedom of political communication within the constitutional text and structure. This implied freedom is not an individual right conferred directly on citizens but rather operates as a freedom from government restraint.
The implied freedom of political communication is derived primarily from sections 7 and 24 of the Constitution, which require members of Parliament to be "directly chosen by the people." The High Court reasoned that for this choice to be informed, there must be free access to relevant political information. This freedom is not absolute and can be limited by laws that are reasonably appropriate and adapted to serving a legitimate end. The legitimacy of a law's purpose and means is determined by its compatibility with the system of representative government established by the Constitution.
The implied freedom restricts laws that interfere with free communication about government and politics. It ensures that individuals can discuss political matters without government intervention. However, this freedom does not extend to cases where political issues are not involved. The scope of what constitutes "government or political matters" is not entirely clear and is subject to interpretation by the courts. It generally includes communications that could influence voting behaviour in federal elections, State or Territory politics, and the actions of public officers.
While Australia is a signatory to the International Covenant on Civil and Political Rights, which includes the right to freedom of expression in Article 19, there has been no express implementation of these principles into Australian law. Instead, the implied freedom of political communication serves as a form of protection for political expression within the context of Australia's system of government. This implied freedom highlights the unique approach that the Australian Constitution takes towards freedom of speech, focusing on the importance of informed political participation.
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Frequently asked questions
The Australian Constitution does not explicitly mention a right to freedom of 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". This freedom is not an individual right but restricts laws that interfere with free communication about government and politics.
Yes, there are limitations to freedom of speech in Australia. For example, any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence is prohibited by law. Additionally, there are laws against defamation, anti-vilification, classification, and censorship that can inhibit creative freedom.
The First Amendment to the United States Constitution explicitly guarantees freedom of speech as a right for all citizens. In contrast, the Australian Constitution does not have such an explicit statement. However, Australia is a signatory to the International Covenant on Civil and Political Rights, which includes the right to freedom of opinion and expression in Articles 19 and 20.
