An Overview of Australia’s Freedom of Speech Protections
By: Simmone Kapadia
The Australian constitution does not explicitly create a right to freedom of speech or freedom of expression.[1] Instead, Australia’s freedom of speech protections are considered to be “implied” protections and are rooted in case law interpreting the Australian constitution and international conventions to which Australia is a party.[2] However, these implied protections, unsurprisingly, are susceptible to erosion by laws that explicitly restrict freedom of speech and expression.[3]
The High Court of Australia first recognized the implied constitutional right to freedom of political communication (“implied right”) in a series of cases it decided in the 1990s.[4] In 1992, the High Court recognized in Australian Capital Television Pty Ltd v Commonwealth (“ACTV”) that a “limited freedom of communication” was implied in the Australian constitution because its representative government, by nature, requires the public to communicate with its elected officials.[5] The Court further reasoned that the requirement that the public communicate with its elected officials “extends to [an implied right of] communication between the members of society generally.”[6] However, while the Court recognized an implied right of political communication, the Court also recognized limits to that right.[7] Specifically, the Court wrote that the implied right could be limited by “reasonable and appropriate” regulations.[8]
In Nationwide News Pty Ltd v Wills, decided the same day as ACTV, Justices Deane and Toohey also found an implied right of political communication based in Australia’s representative government. [9] The Justices reasoned that the Australian constitution’s conception of representative government is premised upon the notion that “the powers of government belong to, and are derived from, the governed” and that freedom of political communication, between the public and representatives and among the public generally, is central to creating an informed electorate that can choose an appropriate government.[10]
In 1997, however, the High Court deviated from its understanding of the implied right of political communication that it promulgated in ACTV and Nationwide News.[11] In Lange v Australian Broadcasting Corporation, the High Court interpreted the implied right of political communication as being derived from the Australian constitution itself as opposed to being rooted in Australia’s representative form of government.[12] Importantly, the Court in Lange reiterated its position in ACTV that the freedom of communication may be limited, stating in Lange that the freedom of communication “is not absolute.”[13]
The Court set out a two-part test in Lange to determine whether a law permissibly restricts the freedom of communication.[14] The first prong of the test requires assessing whether “the law effectively burden[s the] freedom of communication about government or political matters either in its terms, operation or effect.”[15] If the law does burden the freedom of communication, the Court then asks whether “the law [is] reasonably appropriate and adapted to serve a legitimate end” that is compatible with maintaining Australia’s representative government.[16]
In the 2019 case Comcare v Banerji (“Banerji”), the High Court further qualified the Lange test to the dismay of many public sector workers.[17] In Banerji, the plaintiff was a government employee who was terminated for tweeting statements that were, inter alia, critical of her employer’s policies in purported violation of the Australian Public Service (“APS”) Code of Conduct.[18] The Court found in favor of the government and held that the proper test for determining whether a law is overly restrictive is not weighing the law’s effects on the individual, but rather weighing the law’s effects “on political communication as a whole.”[19] The Court held that the government had a legitimate goal of promoting an “apolitical” public service and that the government’s restrictions on the plaintiff’s speech were appropriately limited to balance its underlying goal with the plaintiff’s implied free speech rights.[20] In response to the Court’s weakening of the implied freedom of communication, the Community and Public Sector Union has called for legislative action to enumerate Australians’ right to free speech.[21]
As previously mentioned, Australia also derives its freedom of speech protections from international conventions.[22] For example, Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”) which Australia adopted in 1980, provides, in pertinent part, that “[e]veryone 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.”[23] Notably, Article 19 of the ICCPR also stipulates that the freedom of expression may be restricted to protect the rights of others or to promote public order.[24] Similarly, Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination restricts freedom of speech by disallowing, and making punishable, speech that promotes “ideas based on racial superiority or hatred.”[25] Thus, even when viewed through the international lens, Australia’s freedom of expression is not absolute.
Restrictions on free expression can be contentious even when they have the noble goal of impeding hateful rhetoric and expression.[26] However, when, as in Banerji, the government intrudes on the private lives of its employees when they comment on political matters the line between what is or is not an appropriate restriction becomes murkier.[27] Nonetheless, differentiating between a permissible and an impermissible restriction would likely become easier to navigate in Australia if it had specifically enumerated free speech and free expression rights.
#Australia #FreedomofSpeech #International #Law #BlogPost #Kapadia
Picture Credit: Australia Immigration Professionals
[1] Freedom of Information, Opinion and Expression, Australian Human Rights Comm’n https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-information-opinion-and-expression#:~:text=Constitutional%20law%20protection,government%20created%20by%20the%20Constitution (last visited Feb. 14, 2021) (stating that Australia’s constitution “does not explicitly protect freedom of expression”) [hereinafter Freedom of Information]; see also Right to Freedom of Opinion and Expression, Australian Gov’t: Attorney-Gen’s Dep’t, https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/right-freedom-opinion-and-expression (last visited Feb. 14, 2021) (advising “[t]here is no Commonwealth legislation enshrining a general right to freedom of expression”) [hereinafter Right to Freedom of Opinion and Expression].
[2] Freedom of Information, supra note 1; Right to Freedom of Opinion and Expression, supra note 1.
[3] See e.g., Joshua Krook, Australians Are Quietly Losing Their Right to Free Speech, Oxford Political Rev. (Oct. 8, 2020), http://oxfordpoliticalreview.com/2020/10/08/australians-are-quietly-losing-their-right-to-free-speech/ (advocating for an amendment to Australia’s constitution that protects freedom of speech to guard against laws restricting freedom of expression of public employees); see also Misha Ketchell, The Conversation (June 6, 2010, 7:47 PM), https://theconversation.com/australia-doesnt-protect-free-speech-but-it-could-118448 (stating that the implied freedom of speech protections may “be cancelled out by any law that is reasonable and proportionate to achieve another government objective”).
[4] Leanne Griffiths, The Implied Freedom of Political Communication: The State of the Law Post Coleman and Mulholland, 12 James Cook Univ. L. Rev. 93, 93-94 (discussing the initial evolution of the High Court’s freedom of political communication decisions).
[5] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 213 [hereinafter ACTV].
[6] Id. at 212.
[7] Id. at 217-218.
[8] Id.
[9] Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 72-73 (Deane and Toohey, JJ) [hereinafter Nationwide News].
[10] Id.
[11] Griffiths, supra note 4 at 94.
[12] Id. (explaining that in Lange the High Court reasoned that the implied right to political communication was rooted in the “text and structure” of the Australian constitution).
[13] Lange (1997) 189 CLR 520, 530; see also ACTV 177 CLR at 217-18.
[14] Lange 189 CLR at 567-68.
[15] Id. at 567.
[16] Id.
[17] See e.g., Elizabeth Byrne, Public Servant Loses Free Speech High Court Case Over Tweets Criticising Government Policies, Australia Broad. Corp. (Aug. 7, 2019 at 10:15 AM), https://www.abc.net.au/news/2019-08-07/high-court-free-speech-public-service--banerji-decision/11377990 (providing comments from the Community and Public Sector Union that criticizes the High Court’s opinion in Banerji); [2019] HCA 23, paras. 20-21 [hereinafter Banerji].
[18] Banerji [2019] HCA 23 at paras. 2, 6, 91.
[19] Id. at paras. 20-21.
[20] Id. at paras. 155, 157.
[21] Byrne, supra note 17.
[22] Right to Freedom of Opinion and Expression, supra note 1.
[23] International Covenant on Civil and Political Rights, signed 18 December 1972, [1980] ATS 23 (entered into force 13 November 1980) art. 19.
[24] Id.
[25] International Convention on the Elimination of All Forms of Racial Discrimination, signed 13 October 1966, [1975] ATS 40 (entered into force 30 October 1975) art. 4.
[26] See e.g., Book Forum - Hate: Why We Should Resist it With Free Speech, Not Censorship, Cato Inst. https://www.cato.org/events/hate-why-we-should-resist-it-free-speech-not-censorship (describing notable American free speech scholar Nadine Strossen’s argument that hateful speech should be countered with more speech rather than with censorship) (last visited Feb. 14, 2021); see also Erwin Chemerinsky, Hate Speech is Infecting America, But Trying to Ban it is Not the Answer, Chicago Tribune (Oct. 31, 2018, 1:25 PM), https://www.chicagotribune.com/opinion/commentary/ct-perspec-hate-speech-censor-first-amendment-1101-20181031-story.html (arguing that “censorship is not the answer” to hate speech).
[27] See Banerji [2019] HCA 23 at paras. 2, 6, 91.