Freedom of Speech in Australia
The Australian Constitution is the set of rules which govern Australia and binding upon society. The Australian constitution provides the power of parliament and, the discretionary power of federal and state government in Australia, roles of the three organs of the government and right or freedom of Australian people which secured under constitution.
Freedom of speech or expression is one of the fundamental human right. Every person have liberty to express their opinion regarding any matter. This right allowing societies development and progress because the ability to speak freely or express opinion is crucial to bring changes in society. According to Rachel Jolley, freedom of speech has always been important throughout history because it has been used to fight for change. In her interview, she stated that “when we talk about rights today they wouldn’t have been achieved without free speech. Think about a time from the past when women not being allowed the vote, or terrible working conditions in the mines therefore freedom of speech is important as it helped change these things”
In Australian Constitution there is no provision about freedom of speech even though it is one of the most essential fundamental right that should be enjoyed by every person on the earth. Freedom of speech is crucial for democracy in Australia, however, there is nothing written in the constitution that protects Australian people right to freedom of speech. As stated by Sheryl Saunders in her paper The Australian Constitution and Our Rights, in contrast to the Constitutions of most other Western countries, which list a range of rights and provide legal protection for them, the Australian Constitution includes only a small handful of provisions that deal expressly with rights, this is included with the right or freedom of speech which is not provided under Australian constitution.
However, even though there is no provision doesn’t mean they can use the freedom of speech as they like or there is no limitation for them to say whatever they want. This is because, most of the right which is not stated in the constitution are set out in legislation or common law. Saunders has mentioned in her article that Australia relies on institutional mechanisms for rights protection, the Parliaments, and governments of both the Commonwealth and the States and independent courts applying common law principles. Therefore, the right and limitations for Australian people to use the freedom of speech is legislated in statute and deprived from common law.
There are a lot of legislation that provide about the limitation and how far freedom of speech can be used by Australian. The example of legislation which being enacted for prohibit unlawful speech were criminal law, Secrecy laws, privilege and contempt laws, anti-discrimination laws, media, broadcasting and telecommunications laws, information laws and intellectual property laws.
The purpose for these laws to be enacted is to impose some limitations on freedom of speech. It is crucial for Australian people to understand the scope of the freedom that they can exercise even though it is not being define in the constitution. For instance, they can say anything they want but through the Racial Discrimination Act 1975 (RDA) makes it an offense to make a speech on the basis of a person’s race, colour or national or ethnic origins that is reasonably likely to offend, insult, humiliate or intimidate the person. Therefore this act put a limitation that Australian people cannot use racist language to offend or intimidate someone. Apart from that, in the Criminal law of Australia under Section s 474.29A of the Criminal Code makes it an offence to use a carriage service to access, transmit or publish material that counsels or incites committing or attempting to commit suicide. According to Civil Liberties Australia this law is used to restrict access to materials relating to euthanasia and it is clearly limits the freedom of speech and last but not least, Australian Border Force Act provide an offence for doctors, teachers or anyone involved in the offshore detention system who publicly speak out or report about the treatment of asylum seekers. This offence is punishable by two years in jail. These are the example of legislation or statute that restrict or limit the freedom of speech in Australia
Apart from legislation, common law also is one of the sources which govern the freedom of speech in Australia. According to Investopedia, common law can be define as a body of unwritten laws based on precedents established by the courts. Judge in the case of Nationwide News v Wills stated that freedom of speech has been characterised as one of the fundamental values which protected by the common law. Apart from that, even though there is no an express provision which guarantee right of freedom of speech, Australian judges have acknowledged freedom of speech exists under the Constitution in relation to political and government matter. Therefore, we will look at several decided Australian cases which provide about freedom of speech in Australia.
The first case which grant the existence of freedom of speech in political communication is in the case of Lange v Australian Broadcasting Corporation (1997) 2 BHRC 513 The issue in this case arose when on the defendants broadcast a television programme concerning the affairs of the plaintiff who was a former Prime Minister of New Zealand and a member of the New Zealand Parliament during that time. During the programme, the defendant said a number of allegations about the plaintiff, which are corruption, deceit, abuse of public office and unfitness to hold public office. The plaintiff then file a suit against the defendants and asked damages for defamation. The defendants contended that the allegations made were according to a freedom of speech guaranteed by the Australian Constitution which is to publish material in the course of discussion of government and political matters, and the defendant pleaded a defence on the grounds that the matters complained were related to subjects of public interest and political matters and that they had a duty to publish such material. The matter was brought to the High Court of Australia.
The court held that there was no freedom of communication under the Australia Constitution. Freedom of communication concerning political matters was protected under the Constitution only to the extent that it was implicit in the constitutional system of representative and responsible government. The Constitution did not give a private right of defence to the publication of defamatory material and the defendants’ first claim was accordingly bad in law. Therefore the defendant was liable for defamation.
As for the second case is between Eatock v Bolt and Anor. In this case the first respondent, Andrew Bolt, was a columnist for the Herald Sun newspaper, which was published by the second respondent, Herald & Weekly Times Pty Ltd. In mid-April 2009, he wrote an article, which was published under the headline, “It’s so hip to be black”. In late August 2009, he wrote a further article, which was published under the headline, “White fellas in the black”. Both articles were published in printed and online. Bolt also wrote two blog articles, which were published on the Herald Sun’s website. One was published in late March 2009 under the headline, “One of these women is Aboriginal”. The other was published in mid-August 2009 under the headline, “Aboriginal man helped”. The applicant, Pat Eatock, bring the proceedings to the Federal Court of Australia against Bolt and Herald ; Weekly Times in respect of the newspaper articles and the blogs postings. She complained that the articles were offensive, suggesting that people like her were not genuinely aboriginal and merely pretended to be aboriginal in order to have access to benefits and privileges which are available only to aboriginal people of Australia
The High court Australia held that the Respondents were liable for breached Section 18 C, 18 D and 18 E of the Racial Discrimination Act 1975.
In a nutshell we can see that the freedom of speech in Australia is not absolute. The limitation of freedom of speech in Australia is being set up by the common law as well as legislation. For instance, in relation to the criminal law of incitement and conspiracy, and in obscenity and sedition law. Apart from that, free speech and right to political communication cannot be used as a defence for defamation case. This show that even though everyone has right to practise freedom of speech, it cannot be used as a defence or reason for breaching other laws in Australia.
As a conclusion freedom of speech is an essential and crucial aspect to ensures there is accountability in government. People must be free to express their opinion about the content of laws, as well as the decisions of government relating to the country. There are huge differences in the application of the freedom of speech between Malaysia and Australia. As for Malaysia, the right and freedom of speech is provided under Federal Constitution and one of the fundamental liberties for Malaysian people. This right and freedom also being safeguard by the constitution as well as the limitation for the right to be exercise is being list under the federal constitution. However, in Australia country, the right and freedom of expression is not listed or provide under the Australian constitution but, this does not mean they can use this right as they like. There are still a limitation that being provided under the legislation and common law.
Josie Timms.2016. “Why is free speech important?”. XIndex. 13April 2016
Chery Saunders.2016. “The Australian Constitution and Our Rights”. Constitution Education Fund Australia (CEPA).12 August2016
N.a.”Freedom of speech”. Australia Law Reform Commission. https://www.alrc.gov.auN.a. ” Freedom of Speech in Australia.15 September 2017. http://www.etheringtons.com.au
N.a. “The Meaning Of Common Law”.April 2018. Law Teacher. https://www.lawteacher.netA Young.29 September 2011. “How Free is Speech in Australia?”. http://williamforster.com/Lange v Australian Broadcasting Corporation (1997) 2 BHRC 513
Eatock v Bolt and Another (No 2) – (2011) 284 ALR 114