Australia Does Not Have Freedom Of Speech

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“Free speech” is often raised as a defence in the court of public opinion, particularly when people are called out by their ideological opponents. “You’re attacking my right to free speech!” However, either through forgetfulness or ignorance, many Australians don’t appear to realise free speech is not a legal right they hold.

Australia Does Not Have A Bill Of Rights

The right to free speech has come up frequently in recent times, as the political climate both in Australia and abroad continues to draw heated debate. In the US, individuals often cite their First Amendment rights when they feel they have been censored. Setting aside an analysis of US law, Australia does not have any equivalent.

Unlike the US, Australia does not have a bill of rights, and is the only Western liberal democracy not to have one.

There has been some debate regarding whether Australia needs a bill of rights. Arguments for a bill include that by having a reference point, people will be able to more effectively enforce their rights.

Arguments against a bill include that by defining rights we would by nature be limiting them. In Kruger v The Commonwealth (1997) 190 CLR 1, Dawson J stated, “The framers [of the Constitution] preferred to place their faith in the democratic process for the protection of individual rights.”

The Australian Constitution does not expressly guarantee many rights or freedoms, though it does guarantee a small handful (such as freedom of trade between the states in s 92). Freedom of speech is not one of them.

Australia Does Have An Implied Right To Political Speech

While Australia does not have an explicit freedom of speech, it does have an implied freedom of political speech. Freedom of political speech was first recognised in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, the High Court of Australia finding this right was implied in Australia’s Constitution.

It is the nature of a democratic society to require freedom of political speech, as if the country is to be led by the people (or individuals representing the people’s interests), then the people must be heard, and be able to develop informed opinions.

This cannot be used as a claim to the right of free speech generally. The High Court of Australia subsequently ruled that this implied freedom only protects against laws that infringe upon political speech, which is restricted to matters that may influence voter’s decisions at the poll.

In the case of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, former New Zealand Prime Minister David Lange sued the ABC for defamation, and the ABC raised the implied freedom of political speech as a defence.

In a unanimous decision, McHugh J said, “Those sections [of the Constitution that imply freedom of political speech] do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.” Therefore, the implied freedom of political speech cannot be used as a defence to defamation.

Though the Australian government generally cannot legislate to restrict or burden freedom of political speech, there are exceptions.

Laws can be made restricting political speech where the law serves a legitimate purpose (in that it is compatible with the maintenance of a representative and responsible government), is suitable to achieve its purpose, is necessary (there is no less restrictive alternative), and the importance of its purpose outweighs the weight of the restriction.

If a law fails any of these tests, it is invalid.

However, this is the extent to which the implied freedom of political speech provides protection. It does not protect from an acquaintance shutting you down in conversation, a forum administrator deleting your comments, or an event organiser denying you a platform to speak due to your subject matter.

Even if your statements concerned political matters, you are not being rejected due to a law restricting your speech, so your implied right of political speech is inapplicable. You can say what you want, but others are under no obligation to listen or give you a platform.

The Australian government cannot legislate to restrict your freedom of political speech, but you cannot use "freedom of political speech" as a defence.

Australia Does Not Have An Enforceable International Obligation To Uphold Freedom Of Speech

Australia is a signatory to the International Covenant on Civil and Political Rights, which enshrines freedom of opinion and expression at Article 19. However, the main consequence Australia would face were it to ignore the treaty is international condemnation.

As demonstrated by Australia's apparent indignation at international condemnation regarding its treatment of asylum seekers, Australia could, in theory, disregard the treaty and restrict such expression with little tangible repercussion.


Though “freedom of speech” has become the rallying cry for those who feel that their opinions are unfairly vilified, there is no clear law that Australians can point to regarding a right to free speech. In fact, Australians are subject to a variety of laws restricting free speech, including defamation laws, hate speech laws, sexual harassment laws, and laws against threatening others.

While desirable in theory, truly free speech would open up vulnerable people to intimidation and attack. Some restriction upon speech facilitates the operation of a representative and responsible democracy by fostering an environment in which marginalised people feel safe to speak up.

So the next time your obnoxious uncle comes to visit and starts in on a racist rant, kindly remind him that free speech isn't a thing in Australia. And regardless of the state of Australian law, you're still well within your rights to kick him out of your house.


Comments

    Fun fact - in the US the freedom of speech is in relation to the government making laws limited your freedom of speech, or being shut down by the government.

    You cannot claim freedom of speech when the radio station cuts of your call, your are kicked out of a private establishment, your microphone is turned off in a speech etc etc. Well, you can claim it but it does not apply. Many people do not understand this.

    Also, freedom of speech does not equal freedom from consequence. You talk shit, people can talk shit back, refuse to hire you etc etc.

      There is an argument that can be made about the normalisation of "censorship." In the case of large, monopolistic corporations like facebook or youtube, yes they have a right to choose what they want and don't want on their platforms, but when they have so much control over how we perceive the world, it could be seen that accepting the "censorship" they use makes us more used to the concept and more accepting if it came in at a government level.

        I agree with this, companies like Google and Facebook already have a foot in the door of government.

    We already mostly respect the ideals of freedom and are automatically afforded similar rights under the UN as a member.

    And no offence, but look at what good it's done the US, for all the historical documents, the country is a hot mess.
    (Not even a contender when speaking about freedom)

      We lock women and children in rape camps in order to score votes with the far right members of our society. And let's not mention what we do to our indigenous people.

      So no, we do not 'mostly' respect the ideals of freedom. Only those ideals as they apply to middle class white people.

        Do you? Are you part of the government or the private prison sector?

          Ignore that user. The first sentence of that user's post is reason enough to avoid altogether given how fictional and disconnected from reality that user's views are.

    Then surely those on the other side, cannot be puling out the "hate speech" card.

    Just waiting for them to amend section 8 of the Racial and Religious Tolerance Act 2001 next. Then the lefties will actually have a leg to stand on when not wanting to be labelled as fascists.

      The same laws apply to everyone, I don't understand the point of your comment.

        They are meant to, yes.

        My point is this: In this current climate, a Catholic priest has been criticised for encouraging parents of a Catholic highschool to vote no on SSM because it was "publishing a political view on a public platform".

        Yet on a nationally broadcasted television show on Monday night, we had a senator wanting everyone to "make sure you vote yes", and that is fine.

        Where is the fairness in that?

        I can tell you, the public school I work at (which is part of the safe schools program) has teachers wearing "I'm voting yes" badges and posters up about the upcoming vote encouraging people to vote yes. We even had a teacher encouraging other teachers to vote yes during a staff meeting.

        How is one ok, and the other not?

          I'm not sure which specific instance of a Catholic priest promoting a No vote you're referring to (I found a few examples in a quick Google search) but my search returned no results about any Catholic priests opinions being curtailed by either the government or the authorities.

          Freedom of speech (even if it were more than an implied political freedom here in Australia) does not equal freedom from criticism. Maybe the nationally broadcast message in support of a Yes vote, or the teachers wearing Yes badges, received less criticism because it is a more widely accepted view? Either way, I cannot find any information regarding a priest being restricted from expressing their views.

          So the priest expresses his view, others don't agree so they object. Sounds like free speech to me. What's not fair about it?

            What's not fair is that when expressing an opposing opinion, certain people are quick to point fingers and try to ruin lives regardless. As was stated, we don't have free speech in Australia.

            But one side is clearly doing what they can to oppress ones voice and opinion, whether it be through intimidation, violence and threats. Just look at what happened to Margret Court. voiced an opinion and look what's happened there, what about that Doctor from the no add, she had her private information published online and was receiving death threats within the week.

            But hey.. that's fair

              Yet on a nationally broadcasted television show on Monday night, we had a senator wanting everyone to "make sure you vote yes", and that is fine.
              His personal or parties opinion and he has the right to express this, why is this any different to the other examples you have posted?

              Margret Court: Voiced her opinion and it was unpopular, what you say can have consequences. She thinks the apartheid in Sth Africa was a good idea, people are going to disagree with this.

              Doctor: Sprouted absolute bullshit and rightfully got called out for it, I don't agree with threats of violence or death threats ever.

              You want to voice an opinion, you have to respect the right of others to reply. You also have to accept that what you say can have real consequences.

                That's my whole point. Just because you disagree with something, it doesn't mean that people have a right to slander your name or attack your character. That is what is unfair, that's what I'm pointing at, I'm sorry for my miscommunication.

                In regards to "absolute bullshit" it's actually not. There is a strong correlation (not necessarily causation, I do want to stress that) between the push to redefine marriage and programs such as "safe schools". Unfortunately such things are not mutually exclusive

                Even the parent on the same ad was speaking truth. If you manage to find a copy of the safe sex curriculum you'll see. I had to jump through hurdles at my place of work just to be able to get an outline of it, yet curriculum for all other subjects are readily available.

          Because one side is denying basic human rights on the basis of 'my holy book (actually the Jewish one but whatever) kinda says that gays shouldn't marry so there'

          and the other side says 'stop being such a horrible person and pay attention to that New Testament thing you allegedly follow'.

          I find it constantly distressing when awful people equate their 'right' to be awful with people simply trying to STOP THEM BEING AWFUL.

            I actually have no idea what you are saying, in the New Testament, Jesus (Yeah the Jew, but whatever) explicitly stated in Matthew and Mark what marriage is. That was a simple google search there by the way.

            You have clearly never read or studied any of the material so let's go to a legal standpoint once again a google search.
            Until the enactment of the Marriage Amendment Act 2004, there was no definition in the Act of "marriage", and the common law definition used in the English case Hyde v Hyde (1866) was taken as applicable. The definition pronounced by Lord Penzance in the case was: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others".

            So those saying that it was only defined in 2004 are off by almost 140 years.

            Also, to those saying that there is a huge difference between marriage , etc I present this:
            The Family Law Act 1975 treats de facto relationships, including same-sex relationships, and polygamous marriages as marriages for the purpose of recognising the rights of parties at a breakup. Since 2009, the Family Law Act 2009 has recognised the property rights of each partner of de facto relationships, including homosexual relationships, on separation.

            but
            The Family Law Act 1975 recognises the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life.

            Why? Because society was built upon that foundation.

            There is literally no need to change the definition of what marriage is unless there is an ulterior motive, and you don't have to look too far to see what those are.

              'Not being an asshole'
              'Not holding onto the superstitions of Bronze Age culture'
              'Not being an asshole'

              - those would be the ulterior motives you speak of.

              And yes, the New Testament does indeed discuss marriage. You're referring to this:

              1He left that place and went to the region of Judea and beyond the Jordan. And crowds again gathered around him; and, as was his custom, he again taught them. 2 Some Pharisees came, and to test him they asked, "Is it lawful for a man to divorce his wife?" 3 He answered them, "What did Moses command you?" 4 They said, "Moses allowed a man to write a certificate of dismissal and to divorce her." 5 But Jesus said to them, "Because of your hardness of heart he wrote this commandment for you. 6 But from the beginning of creation, "God made them male and female.' 7 "For this reason a man shall leave his father and mother and be joined to his wife, 8 and the two shall become one flesh.' So they are no longer two, but one flesh. 9 Therefore what God has joined together, let no one separate." 10 Then in the house the disciples asked him again about this matter. 11 He said to them, "Whoever divorces his wife and marries another commits adultery against her; 12 and if she divorces her husband and marries another, she commits adultery."

              Which is a direct question about DIVORCING YOUR WIFE. And the answer is framed in that context. Jesus most definitely does not condemn same sex marriage here. He is answering a very specific question.

              The only text that DOES talk about homosexuality is the Old Testament.

              Meanwhile, I hope you're not wearing garments made of mixed fibres.

    We had section 4 Sedition which despite being used for seditioys libel and slander is defined in the broader sense, as any act causing government, law constitution, sovereign to be held in hatred and contempt. This means unless the government seeks the consensus of every citizen, its guilty of sedition. So an assault on my right to freedom from government is most definatly likely to cause me to hold government in hatred and contempt.

    Coming off a research assignment, a bill of rights would also have humane rights in the bill which would also counter any wrong doings against the people at detention centres, making them more un-ethical than already are.

    The arguments against a bill of rights are stupid. Be explicitly defining some rights we are removing others we already have? What?

      The article didn't say that.
      It said that having a bill of rights would be limiting our rights, i.e., people can claim (most likely for a malicious reason) that anything not in the bill is not a right.

        That makes no sense. You can't use a public toilet, it's not in the bill or rights.

        I'm pretty sure the US one has something stating that these are just a selection and there are heaps more not defined or some such. Just add that in if people are getting their panties in a twist.

          Legislation is too slow to be constantly updated.

            Who said anything about updating it? Just make sure it has a bit in it somewhere that says "these recognised rights do not remove other rights the people may have" or whatever. Or don't and let the stupid people self limit their rights.

              Just make sure it has a bit in it somewhere that says "these recognised rights do not remove other rights the people may have"

              Then what's the point of even writing a bill of rights. Like @Koganei said, if you have a bill of rights, people will look at it and say, "Oh well, that's not in the bill of rights therefore it's not a right!". If you put in a clause saying "Oh yeah and also everybody also has a bunch of other rights that aren't written here", then we end up with the exact same situation that we have now. People an either make up their own rights or people can infringe those made up rights because they're not written down.

                The whole point of it is to have a list of rights that is easy to read and understand for a bunch of common stuff. The whole bit about freedom of speech in Australia is a great example. We kind of have it implied for political speech only.

                Nowhere can the common man look and see "You are free to make any comments you want about the political process/parties/elected people" or whatever they decide.

                What about if the police stop you car. Are they allowed to make you get out so they can search it? Under what circumstances etc. The common person probably would not know anything about that.

                But I guess Australia is special and we won't be able to deal with a bill of rights like every other western liberal democracy.

      By not having an explicit bill of rights, any right could theoretically be argued for if the case for it were strong enough. With an explicit bill, only those rights specifically mentioned could be applied, even if you had a good case for others.

        That's an illogical argument though. That would only be the case if it were an exclusive bill of rights. There's a difference between "these are rights" and "only these are rights", and a standard bill of rights would follow the former.

    I've had this argument with people over and over with people. "BUT MY FREEZE PEACH" the bleat and they don't realise .... we don't have it. We don't have a Bill of Rights. In fact very few countries have enshrined free speech.

    Which is why I had to laugh at those fools who were playing the 'free speech' card in Melbourne yesterday when crying about not being allowed to do that mock beheading video in front of a mosque. There is no 'free speech' card to play guys. This is not the U.S. The court ruling will go against you .... and rightly so.

    They best check is "Is what I'm going to do breaking the 'Don't be a dick' rule"? If so, don't do it.

    Some restriction upon speech facilitates the operation of a representative and responsible democracy by fostering an environment in which marginalised people feel safe to speak up.

    Are you really arguing FOR restrictions on free speech? That's absolutely disgusting. ALL speech is important. No matter how disgusting, degrading or offensive it is, all speech is important. Now, yes, I know "blah blah freedom of speech isn't freedom of consequence", and I'm not saying that it is. I just think that everybody should be able to say whatever the hell they want to say. Disagree with that speech all you want, argue with the speaker all you want, just don't shut down their speech.

    What matters isn't "fostering an environment in which marginalised people feel safe to speak up". What matters is creating an environment in which marginalised people are ALLOWED to speak up. What you are arguing for, and correct me if I'm wrong, IS freedom from consequence. You want "marginalised" people to be able to speak up without their ideas being beaten down by somebody else's speech. However, you don't seem to realise that these "marginalised" people can also beat down somebody else's speech with their own. The most important thing is that all people have the right to say whatever they want.

      Total freedom of speech is detrimental to society, it's a myth that exists nowhere in the world. Your freedom only extends to the point where it doesn't infringe on the freedom of others. You're not allowed to defame, libel or slander; you're not allowed to falsely shout 'fire' in a crowded cinema; you're not allowed to incite others to hatred or violence.

      Your assertion that marginalised people have the same experience with raising their own issues and criticising those they disagree with is naive to the power the majority has to shut down dissent. Try being on your own, going to a neo-Nazi or ISIS rally and telling them they're scumbags, and you'll acutely feel the different response your freedom of expression attracts compared to when you're in the majority.

      I suspect your response to that is that that's just the nature of things that the majority rightly suppresses minority views because the majority reflects what most people want. There are a lot of problems with that notion, particularly that the majority are able to oppress minorities. There's a concept called the tyranny of the masses, something that has plagued democracy for centuries and was acknowledged as important enough that the US founding fathers expressly fought to institute rules to prevent the majority from being able to oppress minorities.

      There are countless examples of minority views being ethically superior but still suppressed by the majority. The women's rights and black rights movements both started as suppressed minorities, and the fight to bring those issues to the forefront was extremely difficult. The majority used the full weight of its power to try to shut down those things despite them strengthening the freedoms of society as a whole.

      Limits placed on individual freedoms can and do improve the freedoms of society as a whole. The notion of total freedom is a myth, and certainly not something that should be pursued. Freedom is good, unfettered freedom is a disaster.

      'ALL speech is important. '

      Just gonna stop you there for a minute. Where does this assertion come from? Jesus? Space Aliens? Is it written on tablets of stone somewhere that a deity gave us?

      You're acting as if free speech is a divine mandate. It is not. It is a social construct - and one that was historically constructed as a means to try and remedy some of the worst excesses of human character based on inequality of social power.

      Thing is, that was a good few hundred years ago and people didn't understand things all that well. Turns out that speech doesn't occur in a vacuum, but is intimately connected with these notions of social power in more than one direction.

      You talk about 'freedom of consequence' simply in terms of someone smacking a bigot in the mouth (and I can see why that's your go-to). But that's not what it is REALLY about.

      It's really about the actual, physical consequences of speech. As in what happens down the line after you let Nazis openly associate and speak, for example.

      And that's what differentiates your average conservative MAH FREEZE PEACH middle class dudes from people with functioning levels of empathy and critical thought. All these people seem fixated on is the holy, magical moment of free speech - and they seem cognitively incapable of grasping that it's actually a contiguous operation and that the action of speech must be viewed in the context of its actual consequences.

      Actually, I tell I lie. Sure, some of these dudes truly are unable to grasp the simple logic. But
      I don't think most of them are actually unaware of this. In fact, I think most of them are perfectly well aware of it. It's just that they LIKE the consequences of these nasty kinds of speech and are looking for a form of existential validation that is more socially acceptable than 'WELL ACTUALLY I DON'T REALLY LIKE OR CARE ABOUT BLACKS/GAYS/LEFTISTS/POOR PEOPLE/JEWS AND DON'T MIND THEM BEING KILLED/BEATEN/TORTURED/IMPRISONED/DISENFRANCHISED'.

      And you know how I know this?

      It's because they only come crawling out to defend the rights to free speech for Nazis, misogynists and any other bottom dwelling life forms. You don't see these guys stridently defending the rights of minorities to free speech, except in occasional paper thin throwaway comments alongside their main argument of 'fascists need free speech too'.

      It's not exactly hard to work out. If you only give a monkey's about free speech when it comes to saying awful things, then you know what? You're an awful human being.

        If you only give a monkey's about free speech when it comes to saying awful things, then you know what? You're an awful human being.

        But it's those awful things that need defending the most. In today's society, anybody can say "Oh hey, I think women are people too!". That's fine. However, when somebody says "I hate women and think they're lower than cockroaches", people actively try to ruin the life of the person that said it. Now, I don't agree with people that say that women of sub-human, I just believe that they should be allowed to say it. I might not agree with what you're saying, but I'll defend to death your right to say it.

          So you think a Nazi's right to call for genocide needs more defending than the right of an LGBT person to speak freely, or a Muslim to be able to express their views without demonisation.

          I am extremely unsurprised by this.

            LGBT are already allowed to speak freely. I don't know if you've noticed this, but we live in a VERY LGBT friendly society. Muslims allowed to express their views, however what you're asking for is freedom from consequence. If a Muslim says "I believe that all infidels should either be converted, pay Jizyah or be killed!", the yeah, they should be demonised. Just like if a nazi calls for a genocide, HE should be demonised. I have no problem with societal repercussions for speech that people define as offensive. What I DO have a problem with is legal repercussions for speech that people define as offensive.

              ...because the difference between 'societal repercussions' and 'legal repercussions' is that the former is always weighted in favour of those who have power and we create the latter in order to try and balance that.

              Which is why you only come out to play when the speech of middle class males is threatened, specifically 'speech' that is about them being awful people. I've seen you do that dozens of times here, but not for any other kind of person. While I am happy to believe you may spend your spare time defending the right to free speech for trans individuals in repressive societies for example, something tells me you don't.

              So while you may claim to fit into the former of the two categories of people I described above, I am willing to bet the reality is that your underlying motivation is simply to protect your own conservative point of view and your 'freedom' to say the hateful things that regularly seem to spring from that worldview - which would place you comfortably in the second, even if it is a subconscious rather than conscious imperative.

                speech of middle class males is threatened you forgot to add, white, hetero and cis- to that description, but now we all see where you are coming from.

                the difference between 'societal repercussions' and 'legal repercussions' is that the former is always weighted in favour of those who have power and we create the latter in order to try and balance that.

                Have a look at the national news these days, or even current affairs programs and you tell me who has this power you speak of, because the societal repercussions are not coming from those on the "right side" of the spectrum. Just looking outside of Australia for a moment, have a look at Berkeley university bring in conservative speakers and riots ensue, welcome to the home of free speech.

                Because one person says "Look, I don't agree with the lifestyle choices you make and I have a different opinion than you do on most things" does not make that person a Nazi. If you say "you're wrong and I'm right" that does not make you a Nazi.

                Please point to me how if I say "I'm voting no to SSM" that makes me a Nazi or more importantly how I am impeding ones "right to free speech"

                Now if you do everything you can to oppress that point of view, especially on a social matter, which is exactly what a lot of proponents of the Yes campaign are trying to do (Hello to the two High Court cases filed against the plebiscite) then are you not impeding on ones "right to free speech", which I will remind you, doesn't really exist in Australia?

                  And here's where you cross the line into 'delusional illness'.

                  You claim that the 'right side' doesn't have the 'power', because of TV shows.

                  You're sitting on top of the biggest teetering heap of late stage consumer capitalism that is quite literally destroying the entire planet. You're sitting in a nation that throws women and children in rape camps because it gets votes from conservatives. You're sitting in a nation where the indigenous inhabitants are still treated like fifth class citizens after centuries of genocide, rape and theft. You're sitting in a nation where in 2017 we allegedly need to have a plebiscite to see if some people can have the same basic rights as others because a minority of the populace follow a mistranslated holy book written by a bunch of sheep herding bronze age peasants.

                  Yeah, nah mate.

                  You're not oppressed.

                  And while you may not *be* a Nazi, I will put a crisp $50 on the table and bet that you don't have that much of a problem with Nazis, but don't have the stones to admit it openly.

    Congratulations kotaku, I was honestly expecting this to be telling everyone that free speach is a alt right tactic to promote bigotry like most other journalists do.

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