Lexi Webster
Australia does not have explicit freedom of speech in any constitutional or statutory declaration of rights, except for political speech, which is protected from criminal prosecution at common law. However, Australia is a party to seven core international human rights treaties, and 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). While Australians have the right to freedom of opinion without interference, exception, or restriction, the right to freedom of expression is more complicated and subject to certain limitations, such as restrictions on speech that may incite crime, violence, or mass panic.
| Characteristics | Values |
|---|---|
| Freedom of opinion | Australians have the right to hold beliefs without interference, exception or restriction. |
| Freedom of expression | Australians have the right to say what they want, but within limits. For example, they are not allowed to use fighting words, slander another person, cause panic, or incite violence. |
| Limitations | The right to freedom of expression is limited by the need to prohibit advocacy of hatred that constitutes incitement to discrimination. |
| Legal protection | The Australian Constitution does not explicitly protect freedom of expression, but the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative government. |
| International treaties | Australia is a party to seven core international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of Persons with Disabilities (CRPD). |
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What You'll Learn
Freedom of opinion and expression
Australia does not have explicit freedom of speech in any constitutional or statutory declaration of rights. However, 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), to which Australia is a party. Additionally, article 4 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) requires the criminalisation of participation in organisations that promote and incite racial discrimination.
The Australian Constitution does not expressly protect freedom of expression, but the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative government created by the Constitution. This freedom of political communication is not a broad freedom of speech, but rather a freedom that protects political free speech from government prosecution.
While Australians have the right to hold beliefs and opinions without interference, exception, or restriction, freedom of expression is more complicated. Australians have the right to say what they want, but within limits. These limitations include restrictions on speech that may incite crime, violence, or mass panic, as well as prohibitions on defamatory statements and certain types of pornographic material.
The Arts Law Centre of Australia advocates for the right to freedom of expression to protect artistic expression and foster cultural growth in Australia. While there are limitations, artists are encouraged to seek legal advice before opting to exclude certain expressions from their work. The Australian Law Reform Commission has criticised offences that attempt to shift the focus from speech to "urging" others to use "force or violence".
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Limitations on free speech
While Australia is a party to seven core international human rights treaties, its constitution does not explicitly protect 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. This freedom of political communication is not a broad freedom of speech, but rather a freedom that only protects political free speech.
There are several limitations on free speech in Australia. Firstly, the right to freedom of opinion and expression must be balanced with other rights, such as the rights to equality and non-discrimination, as well as the rights to privacy and reputation. For example, while individuals have the right to hold opinions without interference, this does not extend to defamatory statements made about private individuals.
Secondly, freedom of expression may be restricted on grounds of national security, public order, public health, or morals. For instance, prohibitions on speech that incite crime, violence, or mass panic may be justified if they are reasonable, effective in protecting public order, and restrict freedom of expression no more than is necessary. Similarly, restrictions on certain pornographic material depicting minors would be considered a limitation on freedom of expression based on public morality.
Additionally, Australia has committed to complying with the International Convention on the Elimination of All Forms of Racial Discrimination. As such, racial vilification, ideologies based on racial superiority, and institutionalised racial discrimination are condemned and considered unlawful acts that impair the equal recognition and enjoyment of human rights.
Furthermore, limitations on freedom of expression may also arise in relation to artistic works. While artistic expression is generally protected, there may be instances where it conflicts with other laws or considerations, such as defamation or public interest. In such cases, the intention of the offender and the context of the expression are important factors in determining liability.
Lastly, it is important to note that the right to freedom of speech in Australia does not protect against private prosecution. While individuals are free to express their opinions, private entities, such as social media platforms, may have their own rules and regulations that govern the expression of opinions on their platforms.
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Political free speech
Australia is a signatory to seven core international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR). Articles 19 and 20 of the ICCPR contain the right to freedom of opinion and expression.
While the Australian Constitution does not explicitly mention freedom of speech or expression, the High Court has ruled that an implied freedom of political communication exists as an indispensable part of the system of representative government created by the Constitution. This freedom of political communication is not a broad freedom of speech, but rather a freedom that specifically protects political free speech. It is a shield against government prosecution, not a shield against private prosecution (civil law). This means that while the Australian government cannot prosecute citizens for their political speech, private entities can still block individuals from expressing their opinions on their platforms.
The right to freedom of opinion and expression includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of one's choice. However, this right carries with it special duties and responsibilities and may be subject to certain restrictions provided by law. These restrictions are necessary for the respect of the rights and reputations of others, the protection of national security, public order, public health, and morals.
In addition, there are limitations on freedom of expression in Australia. For example, the law prohibits defamation, which aims to balance free speech with the right of an individual to enjoy a reputation free from indefensible attack. The law also prohibits the advocacy of hatred that constitutes incitement to discrimination, as well as speech that may incite crime, violence, or mass panic.
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Hate speech and discrimination
Australia is a party to seven core international human rights treaties. 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) protects the right to hold opinions without interference and cannot be subject to any exception or restriction. Article 19(2) protects freedom of expression in any medium, including written and oral communications, the media, public protest, broadcasting, artistic works, and commercial advertising.
However, freedom of expression is not absolute and may be restricted on several grounds. Article 19(3) justifies prohibitions on speech that may incite crime, violence, or mass panic, provided that such restrictions are reasonable, effective in protecting public order, and restrict freedom of expression no more than is necessary. Similarly, the Racial Discrimination Act 1975 forbids hate speech and makes it unlawful for a person to act in a way that is reasonably likely to offend, insult, humiliate, or intimidate another person or group because of their race, colour, national or ethnic origin. All Australian jurisdictions give redress when a person is victimised on these grounds, and some also extend redress to discrimination based on religion, disability, gender identity, HIV/AIDS status, or sexual orientation.
In 1989, New South Wales amended the Anti-Discrimination Act 1977 to make it unlawful to incite hatred, contempt, or severe ridicule towards a person or group based on their race. This amendment also created a criminal offence for inciting violence or threatening physical harm to people or their property based on their race or sexual orientation. In 2025, the Federal Parliament passed the Criminal Code Amendment (Hate Crimes) Bill 2025, strengthening existing hate crime provisions and criminalising 'advocating' force or violence against specific groups.
While these laws aim to protect individuals from harm and uphold equality, they also raise concerns about restricting freedom of expression. Critics argue that the line between harmful speech and legitimate expression is ambiguous and subjective, making it challenging to define and criminalise 'hatred'. Additionally, proposed laws that would have made it illegal to discriminate on a broader range of grounds, such as age, breastfeeding status, and industrial history, have been defeated in Parliament due to concerns about restricting freedom of expression and shifting the burden of proof.
Striking a balance between protecting free speech and preventing harm is crucial in implementing hate speech laws. Guidelines from the United Nations emphasise that criminalising hate speech should be a last resort, reserved for severe forms of incitement to discrimination, hostility, and violence.
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Freedom of speech in schools
Freedom of speech is a human right, but it comes with limitations, such as the use of this right to incite violence. In Australia, freedom of opinion gives citizens the right to hold a belief without interference, exception, or restriction. However, freedom of expression is more complicated. While Australians have the right to express their opinions, advertise, display art, and protest, there are limits to these rights. For instance, it is illegal to use fighting words, slander another person, cause panic, or incite violence.
While the Australian Constitution does not explicitly protect freedom of expression, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative government. This implied freedom of political communication, the main right to free speech in Australia, does not apply to individuals at all. This means that while laws may significantly restrict individuals or groups from engaging in political communication, they will not infringe upon the implied freedom of political communication unless they have a material unjustified effect on political communication as a whole.
In the context of schools, students do not lose their right to free speech by walking into a school. They have the right to speak out, distribute flyers and petitions, and wear expressive clothing in school, as long as they do not disrupt the functioning of the school or violate the school's content-neutral policies. For example, students have been allowed by the courts to wear items like an anti-war armband, an armband opposing the right to abortion, and a shirt supporting the LGBT community. Schools can discipline students for missing class, but they cannot discipline them more harshly because of the political nature of or the message behind their actions.
Additionally, students have the right to speak their minds on social media. Schools cannot punish students for content posted off-campus and outside of school hours that does not relate to the school. However, conversations around free speech are essential in democratic education, and children need to understand the nuances of this concept.
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Frequently asked questions
Australia does not have explicit freedom of speech in any constitutional or statutory declaration of rights, with the exception of political speech, which is protected from criminal prosecution at common law. There is, however, an implied freedom of speech that was recognised in Lange v Australian Broadcasting Corporation.
In 1992, the High Court of Australia judged in the case of Australian Capital Television Pty Ltd v Commonwealth that the Australian Constitution, by providing for a system of representative and responsible government, implied the protection of political communication as an essential element of that system. 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.
The right to freedom of speech in Australia is limited in several ways. These include prohibitions on speech that may incite crime, violence, or mass panic, and restrictions on offensive speech or the publication or broadcast of offensive material. Defamation laws also aim to balance free speech with the right of an individual to enjoy a reputation free from indefensible attack.
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.
