Free Speech and the Constitution

International Background

In 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 19 affirms the right to free speech:

Article 19.

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.
UNHCR

To mark the 50th anniversary of the UDHR members of Parliament of the Commonwealth of Australia reaffirmed the principles of the Declaration in December 1998 and pledged support for the principles of the Declaration. (1)

In 1966 the United Nations adopted the International Covenant on Civil and Political Rights (ICCPR). Article 19 states that:

Everyone shall have the right to freedom of expression …
UNHCR

Australia signed this treaty (2) but, in order to make United Nations recommendations Australian law, governments must pass specific Acts of Parliament. Although some parts of the treaty have been made law, such as the Human Rights Commission Act 1981, (3) no Australian government has implemented the free speech provisions and therefore they are not enforceable by Australian courts.

Freedom of Speech and the Constitution

The Australian Constitution does not make special reference to freedom of speech. The Commonwealth Parliament may restrict or censor speech through censorship legislation or other laws, as long as they are otherwise within constitutional power. The Constitution relates mainly to the structure of the Commonwealth Parliament, executive government and the federal judicial system. (4)There is no list of personal rights or freedoms which may be enforced in the courts. There are however some provisions relating to personal rights such as the right to trial by jury (section 80), and the right to freedom of religion (section 116).

Since 1992 decisions of the High Court have indicated that there are implied rights to free speech and communication on matters concerning politics and government, e.g. permitting political advertising during election campaigns. This is known as the ‘implied freedom of political communication’. Issues arising from these decisions include defining when communication is ‘political’ and when the freedom should prevail over competing public interests.

In 1942 a Constitutional Convention held in Canberra recommended that the Constitution be amended to include a new section 116A preventing the Commonwealth or a State passing laws which curtailed freedom of speech or of the press. The government did not accept this proposal and it was not included in the referendum on 19 August 1944, when other constitutional amendments were proposed.

The advantage of having such rights written into the Constitution is that they are ‘entrenched’ and cannot be amended or removed by any government without the overwhelming approval of the people voting at a referendum to amend the Constitution. Rights contained in other legislation, such as the Racial Discrimination Act 1975, are not entrenched. They may be amended or repealed by any government with the consent of Parliament.

Freedom of Speech and a Bill of Rights

Proposals for legislating for freedom of speech have been made mainly in the context of legislating for a Bill of Rights. Since 1973 at the Commonwealth level there have been attempts to legislate for a Bill of Rights which would incorporate provisions of the 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 lacking constitutional force, such an Act of Parliament would list various rights which could be enforced in the courts in many situations. The less complicated option of legislation, rather than amending the Constitution, has been preferred by proponents of a Bill of Rights.

More recently at the State level Parliamentary Committees in Queensland and New South Wales have considered a Bill of Rights but neither has recommended such a proposal. In 2002 the Australian Capital Territory government established a non-parliamentary committee to inquire into a Bill of Rights for the ACT. Professor George Williams has summarised the arguments for and against the introduction of a Bill of Rights (5):

FOR a Bill of Rights
Australian law does not protect fundamental freedoms
A Bill of Rights would give power of action to Australians who are otherwise powerless
A Bill of Rights would bring Australia into line with the rest of the world
A Bill of Rights would enhance Australian democracy by protecting the rights of minorities
A Bill of Rights would put rights above politics and arbitrary governmental action
A Bill of Rights would improve government policy making and administrative decision making
A Bill of Rights would serve an important educative function
A Bill of Rights would promote tolerance and understanding in the community

AGAINST a Bill of Rights
Rights are already well protected in Australia
The High Court is already protecting rights through its interpretation of the Constitution and the common law
Rights listed in the Constitution or Acts actually make little or no difference in protecting rights
The political system itself is the best protection of rights in Australia
A Bill of Rights would actually restrict rights, that is, to define a right is to limit it
A Bill of Rights would be undemocratic by giving unelected judges the power to override the judgment of Parliament
A Bill of Rights would politicise the judiciary
A Bill of Rights would be very expensive given the amount of litigation it would generate
A Bill of Rights would be alien to our tradition of Parliamentary sovereignty
A Bill of Rights would protect rights (e.g. the right to bear arms) which might not be so important to future generations

It is interesting to note that not only is there no legislation providing for freedom of speech either in the Constitution or in other legislation, but Governments have passed legislation to prevent free speech in certain circumstances. Examples include the various State and Territory defamation laws, and racial vilification laws. Censorship laws may also be used to prevent freedom of speech by restricting distribution of certain films and publications, although these laws now serve mainly to classify publications according to the age groups which can see them, rather than preventing their publication.

Overseas Comparisons

The United States incorporated a Bill of Rights into its Constitution in 1789. Other countries have legislated more recently for freedom of speech, mainly in legislation which is separate from their constitutions: Ireland in 1937, Canada in 1982, New Zealand in 1990, South Africa in 1996, and the United Kingdom in 1998. The European Union has included freedom of expression and information in its Draft Charter of Fundamental Rights for possible adoption by member states. This makes Australia alone among like-minded countries not to provide for freedom of speech in legislation or the national constitution.

Further Reading

The above material has been drawn from the following sources:
Aroney, Nicholas, ‘A Seductive plausibility: freedom of speech in the Constitution’, University of Queensland Law Journal, vol. 18, no. 2, 1995, pp. 249-74.
Chesterman, Michael, Freedom of speech in Australian law: a delicate plant, Ashgate, Aldershot, England, 2000.
Kinley, David, ed., Human rights in Australian law: principles, practice and potential, Federation Press, Leichhardt, NSW, 1998.
Williams, George, A Bill of Rights for Australia, University of NSW Press, Sydney, 2000.
Williams, George, Human rights under the Australian Constitution, Oxford University Press, Melbourne, 1999.

Footnotes:

1. House of Representatives, Debates, 10 December 1998, p. 1811
2. Australian Treaty Series, 1980, no. 23
3. Now the Human Rights and Equal Opportunity Act 1986 (Cth)
4. Text of the Constitution
5. George Williams, A Bill of Rights for Australia, University of NSW Press, Sydney, 2000, p. 35

Source:
Parliament of Australia Parliamentary Library
Research Note no. 42 2001-02
Free Speech and the Constitution
Roy Jordan
Law and Bills Digest Group, 4 June 2002

Theme: Australian history and race relations – International racism and anti-racism – Stereotypes, prejudice and discrimination