Lyla Lindsey
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 political communication 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. This freedom of political free speech is a shield against government prosecution, not a shield against private prosecution (civil law). Western Australia's censorship rules are similar to those in Queensland.
| Characteristics | Values |
|---|---|
| Freedom of speech in the constitution | No explicit freedom of speech |
| Freedom of political communication | Protected from criminal prosecution |
| Censorship | Present in Western Australia and Queensland |
| International Covenant on Civil and Political Rights (ICCPR) | Article 19 provides freedom of expression |
| Convention on the Elimination of All Forms of Racial Discrimination (CERD) | Article 4 restricts freedom of speech by disallowing racial hatred |
| National Classification Scheme | Provides consumers with information to make informed decisions |
| Limitations | Prohibitions on speech inciting crime, violence or mass panic |
| Limitations | Restrictions on offensive speech or publication |
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What You'll Learn
Western Australia's censorship rules
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. There is, however, an "implied freedom of political communication". Despite the court's ruling, not all political speech appears to be protected in Australia, and several laws criminalise forms of speech that would be protected in other countries. For example, in 1996, Albert Langer was imprisoned for advocating that voters fill out their ballot papers in a way that was invalid.
Some activists consider Australia's laws on Internet censorship to be among the most restrictive in the western world. The importation of certain books, video games, and media are prohibited based on their content. The Australian Border Force has stated that any depictions of sex, drug misuse or addiction, crime cruelty, violence, terrorist acts, or revolting content that offends moral standards and decency are prohibited.
In 2006, the Federal Parliament passed the Suicide Related Materials Offences Act, which makes it illegal to use the Internet to discuss the practical aspects of suicide. In 2015, an amendment was passed to copyright law, allowing for the court-ordered censorship of non-domestic websites whose primary purpose is to facilitate copyright infringement. In 2019, the Senate passed a bill in response to the Christchurch mosque shooting, which requires websites that provide a hosting service to "ensure the expeditious removal" of audio or visual material documenting "abhorrent violent conduct".
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Limitations to freedom of expression
While everyone has the right to freedom of expression, this right is not absolute and may be restricted by law in certain situations. In Australia, the Constitution does not expressly protect freedom of expression, and there are several limitations that can inhibit creative freedom. These include defamation, anti-vilification, classification and censorship laws, and offences related to treason and urging violence.
Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR) justifies prohibitions on speech that may incite crime, violence, or mass panic, provided that such restrictions are reasonable, effective in protecting public order, and do not restrict freedom of expression more than is necessary. Similarly, Article 20 of the ICCPR contains mandatory limitations on freedom of expression, requiring countries to outlaw vilification of persons on national, racial, or religious grounds. Australia has made a declaration regarding Article 20, stating that existing Commonwealth and state legislation adequately addresses this issue.
The Australian government has also committed to reviewing its reservations to international human rights treaties, including Article 4(b) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which requires the criminalisation of participation in organisations that promote and incite racial discrimination. Additionally, the National Classification Scheme in Australia aims to provide consumers with information about publications, films, and computer games, enabling them to make informed decisions about appropriate entertainment material.
In the context of artistic expression, artists in Australia may be required to have their works classified based on factors such as medium, content, and intended use. This classification process can impose limitations on freedom of expression, particularly regarding child pornography, obscenity, and indecency. Furthermore, discrimination and anti-vilification laws in Australia aim to encourage tolerance and acceptance of social diversity while setting boundaries for conduct that incites hatred, serious contempt, or severe ridicule based on protected attributes such as race, religion, or disability.
While Western Australia's censorship rules are similar to those in Queensland, television advertising is permitted by the Australian Communications and Media Authority (ACMA). However, concerns have been raised about the potential impact of censorship on freedom of expression, particularly regarding the censorship of lawyer communication in Queensland, which some argue keeps the public under-informed.
In summary, while Australia recognises the importance of freedom of expression, there are limitations in place to protect public order, national security, and the rights and reputations of others. These limitations are subject to ongoing review and interpretation by the courts and legislative bodies.
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Political free speech
Australia does not have explicit freedom of speech in any constitutional or statutory declaration of rights. However, the exception to this is political speech, which is protected from criminal prosecution at common law per Australian Capital Television Pty Ltd v Commonwealth. This freedom of political communication was recognised in Lange v Australian Broadcasting Corporation and reaffirmed in Unions NSW v New South Wales.
In 1992, the High Court of Australia judged 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. This freedom of political free speech is a shield against government prosecution, not a shield against private prosecution (civil law). Despite the court's ruling, not all political speech appears to be protected in Australia, and several laws criminalise forms of speech that would be protected in other countries.
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), which Australia adopted in 1980. Article 19 of the ICCPR provides that "everyone shall have the right to freedom of expression and that this right shall include freedom to seek, receive and impart information and ideas of all kinds". Article 19 also stipulates that the freedom of expression may be restricted to protect the rights of others or to promote public order. Article 20 of the ICCPR contains mandatory limitations on freedom of expression and requires countries to outlaw vilification based on national, racial, or religious grounds.
In addition to the ICCPR, Australia's freedom of speech protections are derived from other international conventions, such as the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Rights of the Child (CRC). These conventions provide further support for the protection of freedom of speech and expression in Australia.
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Freedom of expression in international conventions
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 Article 19(2) protects freedom of expression in any medium. This includes written and oral communications, the media, public protest, broadcasting, artistic works, and commercial advertising.
Article 20 of the ICCPR contains mandatory limitations on freedom of expression. It requires countries to outlaw vilification based on national, racial, or religious grounds. Australia has made a declaration in relation to Article 20, stating that existing Commonwealth and state legislation is adequate, and that no further legislation on these matters will be introduced.
The right to freedom of opinion and expression is also enshrined in the following international conventions:
- Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
- Article 7 of the Convention on the Elimination of All Forms of Discrimination Against Women
- Article 19 of the Universal Declaration of Human Rights (UDHR)
- Article 19 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
- Article 9 of the African Charter on Human and Peoples' Rights
International law protects free speech, but there are instances where speech can be legitimately restricted, such as when it violates the rights of others, advocates hatred, or incites discrimination or violence. Governments have a duty to prohibit hateful and inciteful speech, but they must also respect peaceful dissent. While Australia does not have explicit freedom of speech in its constitution or statutory declarations of rights, there is an "implied freedom of political communication". This freedom, recognised in Lange v Australian Broadcasting Corporation, protects political free speech from government prosecution.
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Freedom of speech in universities
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. There is, however, an implied freedom of political communication. This freedom of political free speech is a shield against government prosecution, not a shield against private prosecution (civil law).
In 2018, the Australian Government asked former Chief Justice Robert French to conduct an independent review of freedom of speech and academic freedom in Australian higher education. While French disagreed that there was a "freedom of speech crisis" on campuses, he nonetheless noted the risks to freedom posed by the various and vaguely-worded protections then in place. Concerns include the influence of the People's Republic of China on university administrations, 'deplatforming' of controversial speakers and viewpoints, and demands that academics refrain from contesting one another's conclusions.
In Australian universities, it is normal for people to discuss opinions that are controversial – neither students nor staff have to agree with the Australian Government. The University of Western Australia fully supports the right of staff and students to discuss controversial ideas – the only restrictions are those imposed by federal or state laws or regulation authorised by UWA’s Code for the Protection of Freedom of Speech and Academic Freedom.
There have been incidents of guest speakers and students being hounded off campus. The University of Western Australia and Flinders University both rejected Bjorn Lomborg's Consensus Centre after he was targeted by students, academics and media for his views on climate change policy. Australia's universities also maintain policies that prevent "insulting" and "unwelcome" comments, "offensive" language, and, in some cases, hurt "feelings". For example, the University of Newcastle, the location of one of the aforementioned incidents, prevents behaviour that "offends" on the basis of "nationality".
In 2008, and again in 2018, Australia’s university leaders issued unequivocal statements setting out the founding principle of their institutions: Australian universities restate our enduring commitment to academic freedom and intellectual inquiry. We also restate our enduring commitment to freedom of expression on our campuses and among our staff and students.
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Frequently asked questions
Western 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. However, there is an implied freedom of political communication 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 but rather a freedom that only protects political free speech.
Article 19 (3) would justify prohibitions on speech that may incite crime, violence or mass panic, provided the prohibition is reasonable and effective to protect public order. Article 20 of the ICCPR contains mandatory limitations on freedom of expression and requires countries to outlaw vilification based on national, racial, or religious grounds.
