Lexi Webster
Australia's press freedom is not constitutionally guaranteed, but a hyperconcentration of the media combined with occasional pressure from the authorities on media professionals endangers public interest journalism. While the country has a rich history of journalism, Australian journalists are more vulnerable to defamation action than many of their international peers, and the country has seen a decline in press freedom in recent years.
| Characteristics | Values |
|---|---|
| Federal laws guaranteeing freedom of expression | Yes, the ICCPR safeguards freedom of expression and opinion. |
| Freedom of press guaranteed in the constitution | No, but the High Court has recognised an implied freedom of political communication. |
| Ranking in 2020 by Reporters Without Borders | 26th out of 180 countries |
| Ranking in 2006 by Reporters Without Borders | 35th out of all countries |
| Ranking in 2002 by Reporters Without Borders | Not provided, but the score was 3 out of 10 |
| Media ownership | Three groups dominate media ownership, with most print media owned by News Corp Australia or Nine Entertainment. |
| Media union | Media, Entertainment and Arts Alliance (MEAA) |
| Laws inhibiting the right of the press to gather and distribute news | Unacceptable unless it can be shown that the public interest is better served by such laws. |
| Defamation laws | Australian journalists are more vulnerable to defamation action than their international counterparts. |
| Anti-terrorism legislation | Australian anti-terrorism legislation (2004) and the Australian Anti-Terrorism Act (2005) have hampered press freedom. |
| Sedition laws | Exist and have impacted press freedom. |
| Suppression orders | Exist and have impacted press freedom. |
| Freedom of Information requests | Exist and have impacted press freedom. |
| Laws on foreign interference | Exist and have impacted press freedom. |
| Disclosure of public-interest information by government officials | Exist and have impacted press freedom. |
| Incitement to racial and religious hatred | Exist and have impacted press freedom. |
| Data surveillance | Exist and have impacted press freedom. |
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What You'll Learn
Australia's constitution and freedom of expression
Australia's constitution does not explicitly protect freedom of expression or freedom of the press. However, the High Court has recognised an implied freedom of political communication, which is vital for democratic societies. This was established in the 1992 case of Australian Capital Television Pty Ltd v Commonwealth, where the High Court ruled that there was an implied right to freedom of political communication in the constitution.
In the case of Theophanous v Herald and Weekly Times Ltd in 1994, the High Court's previous ruling was enforced, validating the constitution's implied freedom of speech as a defamation defence. However, this did not last, and in 1997, the High Court heard the case of former New Zealand Prime Minister Lange v Australian Broadcasting Corporation, which challenged the rulings of the previous cases. Since then, Australian law does not accept implied freedoms as a defamation defence, and journalists facing slander or libel must rely on common law defences.
The lack of explicit protection for freedom of expression in Australia's constitution has resulted in concerns about press freedom and the free flow of public-interest information. Federal laws tightening national security, particularly those enacted after the September 11 terror attacks in the US, have been criticised for hindering press freedom. This includes laws on foreign interference, the disclosure of public-interest information, incitement to racial and religious hatred, and data surveillance.
Additionally, Australia's strict defamation laws have made journalists more vulnerable to defamation action compared to their international counterparts. The country's high ranking in the Reporters Without Borders survey in 2006, where it was ranked 35th out of 180 countries in relative press freedom, has been attributed to factors such as anti-terrorism legislation, sedition laws, suppression orders, and Freedom of Information requests.
While Australia's constitution may not explicitly guarantee press freedom, organisations like the Australian Press Council advocate for a free press and make statements on public policy issues. The Media, Entertainment, and Arts Alliance (MEAA) has also expressed concerns about the concentration of media ownership, which has been exacerbated by mergers and acquisitions of large media organisations.
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Media ownership and press freedom
Australia's constitution does not explicitly guarantee freedom of expression or freedom of the press. However, the High Court has recognised an implied freedom of political communication, which is vital for democratic societies. This was established in the 1992 case of *Australian Capital Television Pty Ltd v Commonwealth*, where the court ruled that there was an implied right to freedom of political communication in the constitution.
Despite this, press freedom in Australia is threatened by several factors. One of the major concerns is the high concentration of media ownership, with three groups dominating the industry. The Media, Entertainment and Arts Alliance (MEAA), the country's foremost media union, has long expressed concern about this issue, which has been exacerbated by mergers and acquisitions of large media organisations. The close ties between media company owners and political leaders also fuel doubts about the editorial independence of their outlets.
Australian journalists are more vulnerable to defamation actions than their international counterparts, as Australian law does not currently accept implied freedoms as a defamation defence. This has resulted in a decline in press freedom, with Australia ranked 35th out of 180 countries by Reporters Without Borders in 2020, and has led to criticism of strict local defamation laws.
Additionally, federal laws tightening national security, particularly those enacted after the September 11 terror attacks, have hampered press freedom. These include laws on foreign interference, the disclosure of public-interest information, incitement to racial and religious hatred, and data surveillance. The COVID-19 pandemic has also negatively impacted the media industry, accelerating closures and workforce reductions, particularly in regional media outlets.
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Political communication and free press
Australia's constitution does not explicitly protect freedom of expression or the press, and federal laws on national security and anti-terrorism have hampered press freedom. However, the High Court has recognised an implied freedom of political communication. This was established in the 1992 case of *Australian Capital Television Pty Ltd v Commonwealth*, which concerned regulations banning political advertising during elections. The ruling found there was an implied right to freedom of political communication in the constitution.
This was reaffirmed in the 1994 case of *Theophanous v Herald and Weekly Times Ltd*, which validated the constitution's implied freedom of speech as a defamation defence. However, this ruling was short-lived, and in 1997 the High Court heard the case of *Lange v Australian Broadcasting Corporation*, which challenged the previous rulings. Since then, Australian law has not accepted implied freedoms as a defamation defence, and journalists facing slander or libel must use a common-law defence.
The owners of large media companies have close ties to political leaders, which raises doubts about the editorial independence of their outlets. There is also a hyper-concentration of media ownership, with three groups dominating the market. This has been exacerbated by mergers and acquisitions of the largest media organisations, leading to concerns from the Media, Entertainment and Arts Alliance (the country's foremost media union).
The Australian Press Council has a Charter for a Free Press, which states that laws or practices that restrict or inhibit the right of the press to gather and distribute news, views, and information are unacceptable unless it can be shown that such restrictions better serve the public interest than the people's right to know.
While Australia's press freedom has been called into question, it ranked 26th out of 180 countries in a 2020 Reporters Without Borders survey, ahead of the UK and US.
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Defamation laws and their impact
Australia's defamation laws aim to protect individuals, groups, and entities from false or damaging statements that harm their reputation or standing in society. Defamation laws in Australia are civil matters, and disputes are resolved through the court system without police involvement. Defamation laws in Australia are defined through a combination of common law and statutory law.
To succeed in a defamation case, the plaintiff must prove that the material published by the defendant contained one or more defamatory "imputations". An imputation is a negative claim about a person or their behaviour that lowers their reputation in the eyes of reasonable members of the community. The court views the publication through the eyes of a hypothetical 'ordinary reasonable person' to decide what meanings are conveyed. The publisher's intention is irrelevant in establishing a publication's meaning. Defamatory material can be any kind of communication that has been published in some way, including social media posts, comments, and replies.
There are several defences available to defamation actions in Australia, including justification, contextual truth, absolute privilege, qualified privilege, fair report on proceedings of public concern, publication of matter concerning an issue of public interest, honest opinion, scientific or academic peer review, and innocent dissemination. A partial defence to liability is also available if the defendant has offered an apology or attempted to make amends.
Between 2014 and 2018, Australia recorded ten times as many libel claims as the UK per capita, earning the title of the "world defamation capital". This high rate of defamation cases has been attributed to the country's uniform defamation laws, which allow plaintiffs to sue for defamation regarding publications of defamatory matter, including libel and slander.
Australia is set to undergo significant changes to its defamation laws, with proposed reforms expected to commence on 1 January 2024. These amendments to the Defamation Act 2005 aim to modernise defamation laws in recognition of rapid technological advancements, particularly the rise of social media and internet search engines. The proposed reforms introduce a new 'innocent dissemination' defence for intermediaries, such as search engines, that unintentionally host defamatory material.
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Historical context of Australian journalism
Journalism in Australia has an extensive history. The Australian Journalists Association (AJA), a trade union for journalists, was formed in 1910 after several unsuccessful attempts to create a bond or union for journalists. At the time, journalists were often paid by the line, working for a penny a line, and the AJA worked to improve their working conditions. The union also played a role in ending the era of "penny-a-line" piece work, with Sir Keith Murdoch, a foundation member of the AJA and father of Rupert Murdoch, commenting that the union "got me a rise of one pound a week and relief from slavish conditions".
In 1913, the AJA merged with the Australian Writers' and Artists' Union, which had been formed in 1910 by prolific writer Harold Mercer, also known as Harold St Aubyn. In 1914, C.E.W Bean, Australia's First Official War Correspondent, predicted that war reporting was not a 'dying profession', as the Chief of British Intelligence had claimed, but rather the beginning of a new era. Bean's prediction proved correct, and since 1863, over 750 Australian journalists, photographers, and cinematographers have covered international conflicts.
In 1921, May Maxwell, another foundation member of the AJA, was invited by Keith Murdoch to make the Melbourne Herald's weekly women's page a daily feature. Maxwell went on to serve on the AJA's Victorian committee and became an honorary life member in 1960, receiving an OBE for services to journalism in 1969.
In more recent years, Australia has experienced a decline in press freedom, with the country dropping from 19th out of 180 countries in 2018 to 39th in 2022 on the Press Freedom Index. This decline has been attributed to rising media censorship, intimidation of journalists, and close ties between media companies and political leaders, which have fuelled doubts about editorial independence. Australian journalists are also more vulnerable to defamation action than their international counterparts, as Australia lacks a bill of rights and explicit rights to freedom of speech in its constitution.
In 2019, the Australian Federal Police conducted raids on the homes of journalists Annika Smethurst and Ben Fordham, as well as the ABC, over stories related to new surveillance laws and alleged war crimes in Afghanistan. These incidents sparked an outcry of condemnation and led to a united protest by major media outlets, demanding access to sensitive government material and changes to legislation to protect journalists' rights.
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Frequently asked questions
Yes, the International Covenant on Civil and Political Rights, which Australia has ratified, safeguards freedom of expression and opinion. However, the Australian Constitution does not explicitly protect freedom of expression.
Freedom of the press is not constitutionally guaranteed in Australia. However, the High Court has recognised an implied freedom of political communication.
Press freedom in Australia is threatened by a hyperconcentration of the media, occasional pressure from the authorities on media professionals, and strict defamation laws. In 2020, Reporters Without Borders ranked Australia 26th on a list of 180 countries ranked by press freedom.
The Media, Entertainment and Arts Alliance (MEAA) is a strong advocate of press freedom in Australia. The Australian Press Council has also published a Charter for a Free Press.
Federal laws tightening national security, such as those enacted after the September 11 terror attacks in the US, have hampered press freedom. This includes laws on foreign interference, the disclosure of public-interest information, incitement to racial and religious hatred, and data surveillance.
