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While free speech is considered a fundamental human right, it is not explicitly protected in Australia. The Australian Constitution does not contain a direct mention of free speech, unlike the First Amendment to the United States Constitution. However, Australia is a signatory to seven core international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), which upholds the right to freedom of opinion and expression. The High Court of Australia has also inferred a freedom of political communication from sections 7 and 24 of the Constitution, recognising the need for unrestricted access to political information to ensure informed choices in a representative government. Nonetheless, the interpretation of free speech in Australia has been a subject of debate, with varying opinions on its existence and limitations.
| Characteristics | Values |
|---|---|
| Freedom of speech in the Australian Constitution | Not explicitly stated |
| Freedom of political communication | Implied in the Constitution |
| Right to freedom of opinion and expression | Protected by international human rights treaties |
| Right to hold opinions without interference | Protected by the Human Rights Act 2004 (ACT) |
| Right to freedom of expression | Protected by the Human Rights Act 2004 (ACT) |
| Limitations on freedom of expression | Prohibitions on speech that may incite crime, violence, or mass panic |
| Freedom of the press | Protected by the Constitution |
| Freedom to engage in political activity | Protected by international human rights treaties |
| Freedom to criticize | Protected by international human rights treaties |
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What You'll Learn
Freedom of political communication
While the Australian Constitution does not explicitly mention freedom of speech, freedom of political communication is one of the few human rights protections recognised in it. This recognition stems from two landmark judgments in 1992, namely *Nationwide News Pty Ltd v Wills* and *Australian Capital Television Pty Ltd v the Commonwealth*, where the High Court held that an implied freedom of political communication exists as an incident of the system of representative government established by the Constitution. This was reaffirmed in *Unions NSW v New South Wales* in 2013.
The High Court inferred this freedom primarily from Sections 7 and 24 of the Constitution, which require that members of Parliament be 'directly chosen by the people'. The Court reasoned that for this to be an informed choice, there must be free access to relevant political information. This freedom has been used to declare invalid Commonwealth laws that prohibited the broadcasting of political material in the lead-up to elections and obliged broadcasters to provide free advertising time to political parties during an election period.
However, the Court has recognised that this implied freedom can be limited or burdened by laws that are reasonably appropriate and adapted to serving a legitimate end compatible with Australia's system of government. This limitation is reflected in Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR), which Australia is a party to, and permits restrictions on speech that may incite crime, violence, or mass panic, provided the prohibition is reasonable, effective in protecting public order, and restricts freedom of expression no more than necessary.
In practice, this means that while Australians have the right to say what they want, there are limits to this right. For example, they are not allowed to use fighting words, slander another person, cause panic, or incite violence. These limits are similar to road rules, where drivers are free to use the roads but must observe speed limits and other restrictions.
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Freedom of opinion
Australia is a signatory 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). Article 19(1) of the ICCPR states that everyone has the right to hold opinions without interference, exception, or restriction. This means that Australians have the right to believe anything they want, be it a popular or unpopular opinion.
However, it is important to note that freedom of expression is a separate concept and is more complicated. While Australians have the right to say what they want, there are limits to this right. For example, they are not allowed to use fighting words, slander another person, cause mass panic, or incite violence. These restrictions on freedom of expression are necessary to maintain public order and protect the rights of others.
In Australia, the National Classification Scheme provides information on publications, films, and computer games to help individuals make informed decisions about appropriate entertainment material for themselves and their families. This scheme is an example of how freedom of expression can be limited to protect public morality and the well-being of vulnerable groups, such as minors.
While the Australian Constitution does not explicitly mention freedom of speech, the High Court has inferred a freedom of political communication from sections 7 and 24 of the Constitution. These provisions require that members of Parliament be "directly chosen by the people," which implies that citizens must have access to relevant political information to make informed choices. However, this freedom of political communication is not absolute and can be limited by laws that serve a legitimate purpose in a manner compatible with Australia's system of government.
In summary, Australians enjoy a high degree of freedom of opinion, allowing them to hold and express their beliefs without interference. At the same time, freedom of expression is subject to reasonable limits set by laws and policies that aim to protect public order, morality, and the rights of others.
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Freedom of expression
While Australia is a party to seven core international human rights treaties, its constitution does not explicitly mention the concept of free speech. However, the High Court has inferred a freedom of political communication from sections 7 and 24 of the Constitution, which require members of Parliament to be 'directly chosen by the people'. This freedom of political communication was reaffirmed in Unions NSW v New South Wales [2013] HCA 58.
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) of the ICCPR states that everyone has the right to hold opinions without interference, and article 19(2) protects freedom of expression in any medium. These rights are also reflected in Australia's Human Rights Act 2004 (ACT), which states that everyone has the right to freedom of expression and the freedom to seek, receive and impart information and ideas of all kinds.
Despite these protections, freedom of expression in Australia is not absolute and is subject to certain limitations. For example, restrictions on freedom of expression may be justified if they are reasonable, effective in achieving their purpose, and do not impinge on freedom of expression more than necessary. Prohibitions on speech that incite crime, violence, or mass panic may be justified under article 19(3) of the ICCPR, provided they meet these criteria. Additionally, the National Classification Scheme in Australia provides information on publications, films, and computer games to help individuals make informed decisions about appropriate entertainment material.
In practice, there have been instances where the right to freedom of expression in Australia has been called into question. For example, in 2021, Justice Simon Steward of the High Court expressed doubt about the existence of a constitutionally protected right to freedom of political communication, stating that it may not be "settled law". This opinion marked a shift towards more conservative legal interpretations of freedom of speech in Australia.
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Limits on free speech
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).
While Australians have the right to freedom of expression, this right is not absolute and is subject to some limitations. Here are some examples of limits on free speech in Australia:
Defamation Laws
Defamation laws aim to balance free speech with the right of an individual to protect their reputation from unfounded attacks. Defamation occurs when a person communicates something that lowers or harms the reputation of another identifiable person, and the communicator has no legal defence.
Prohibitions on Speech Inciting Crime, Violence, or Mass Panic
Article 19(3) of the ICCPR permits restrictions on speech that may incite crime, violence, or mass panic. Such restrictions must be reasonable, effective in protecting public order, and must not restrict freedom of expression more than necessary.
Restrictions on Offensive Speech
Australia has laws prohibiting advocacy of hatred that constitutes incitement to discrimination. These laws include mandatory limitations on freedom of expression and apply to offensive speech, as well as the publication or broadcast of offensive material.
Public Morality
While there is no universally applicable standard for public morality, restrictions on certain types of content, such as pornographic material depicting minors, are considered limitations on freedom of expression based on public morality.
National Security
Similar to the interpretation of the First Amendment in the United States, Australian courts have recognised that freedom of expression can be restricted when it poses a clear and present danger or is likely to incite imminent lawless action.
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International human rights treaties
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). The right to freedom of opinion and expression is also contained in articles 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), articles 12 and 13 of the Convention on the Rights of the Child (CRC), and article 21 of the Convention on the Rights of Persons with Disabilities (CRPD).
Article 19(1) of the ICCPR states that everyone shall have the right to hold opinions without interference and is not 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, and broadcasting. Article 19(3) justifies prohibitions on speech that may incite crime, violence, or mass panic, provided that the prohibition is reasonable, effective in protecting public order, and restricts freedom of expression no more than is necessary.
Article 4(b) of CERD requires the criminalisation of participation in organisations that promote and incite racial discrimination.
While Australia is a signatory to these international treaties, most of them have not been legislated by Parliament into Australian law. This failure to implement the ICCPR, in particular, presents significant practical impediments to realising fundamental freedoms in Australia, such as freedom of speech. Australia's Constitution also does not explicitly protect freedom of expression, and there is no regional court like the European Court of Human Rights to provide oversight.
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 has been interpreted to invalidate Commonwealth laws that prohibited the broadcasting of political material during election periods and obliged broadcasters to provide free advertising time to political parties during elections.
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Frequently asked questions
Freedom of speech is not explicitly protected in Australia, and it is not mentioned in the Australian constitution. 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).
Freedom of opinion gives Australians the right to hold a belief without interference, exception, or restriction. Freedom of expression is more complicated and is subject to some limitations. Australians have the right to say what they want but not to the extent that it will cause a panic, incite violence, or be considered slander, for example.
The First Amendment to the United States Constitution proclaims freedom of speech as a right for all citizens. The Australian constitution does not have such an explicit statement regarding free speech. The United States Supreme Court has interpreted the right as subject to some restrictions, including where it is likely to incite or produce imminent lawless action.
