Australia has NO freedom of Speech — so shut up about it!

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Statement of fact: Australia is not America!

This means that while Australia has a Constitution it does not have a Bill of Rights or Amendments, in the same vein as America.

We hear all the time about the First Amendment in America, the right to free speech:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.[1]

This is a tenant on which much of, at the very least, journalism, socio-political protestation relies upon. It crosses into all aspects of politics, culture, economics, and society as a whole. I am not an expert on the American Constitution or the Bill of Rights, I am not even American.

I am Australian and am here to tell you that we have a fully functional democracy that thrives without a designated legislatively mandated freedom of speech.

Australia has no right to free speech.

It does not exists!

Yet news report after news report, vox pop after vox pop, article after article reference this mythical freedom that is allegedly present in Australian law, society and culture.

There is an argument that we have these protections under common law. Precedent tells us that Australia is, legislatively a “liberal democracy founded on the principles and traditions of the common law”.[2] And within Australia it has traditionally been recognised that common law protects freedom of speech and the press as it serves the public interest.[3]

Lord Coleridge in 1891, in Bonnard v Perryman argued the right of free speech as “one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done”[4] This is where Australia gets its common law from the decisions and statutes held by the coloniser imposed upon the colony.

However, this is functionally irrelevant.

This is due to two reasons:

1. None of this ‘Common Law’ as it relates to the rights of speech has been legislated in Australia or at the State level. As it is not in legislation it is not, essentially, enforceable either by any State, Federally or any court.

2. Magistrates are not bound by common law. They can make decisions as they see fit based on legislation and precedent. Again, they are not bound by precedent so even where any common law has been used in past cases, thus becoming precedent, Magistrates are still not bound by these decisions.

With more and more 24-hour news cycles, political pressures, the melding of the legislature, political and the judicial, with less defined barriers we will see more and more decisions made based on policy rather than tradition. I do not necessarily think this is a terrible thing, but what it means is that freedom of speech in Australia cannot rely on common law determinants to take a foothold in current society.

The Australian Law Reform Commission outlines a series of rights that are covered by the Australian Constitution. These are:

· the right to trial by jury on indictment for an offence against any law of the Commonwealth -s 80;

· freedom of trade, commerce and intercourse within the Commonwealth — s 92;

· freedom of religion — s 116; and

· the right not to be subject to discrimination on the basis of the state in which one lives — s 117.[5]

Notice what is missing?

Yes speech!

An Australian Constitutional law expert Professor Helen Irving contends that policy (freedoms and rights) was left out of the drafting of the Australian Constitution because those who developed it wanted to leave law-making to the legislators of the time to reflect the social and political climate at the time.[6]

This is not a great result.

Photo by Michael Marais on Unsplash

At the time Australia was a very racist nation. The Premier of Western Australia, John Forrest, in the debates surrounding the formulation of the Constitution said:

It is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia against the introduction of coloured persons. It goes without saying that we do not like to talk about it, but still, it is so. I do not want this clause to pass in a shape which would undo what is about to be done in most of the colonies, and what has already been done in Western Australia, in regard to that class of persons.[7]

Here he is talking about the laws in place at the time disallowing Chinese immigrants from obtaining mining licences and being treated as non-people.

Not only was no right to free speech or freedom put in the Constitution, the drafters went a step further and did the opposite under s 51(xxvi) powers were given to the Commonwealth Parliament to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”.[8] We know from contemporaneous commentators Quick and Garran (1901), that this was inserted to authorise the Commonwealth Parliament to localise the “people of any alien race”[9] This impacted, negatively, legal right, freedoms and immigration of all non-white colonial persons. It is the opposite of freedoms of speech and while this clause was, thankfully, amended in a 1967 referendum for Aboriginal and Torres Strait Islander peoples, there was no introduction of any freedoms in this amendment. So, the overt racism was legislatively removed, but no concessions given.

The only entrenched, specifically stated right, that is that which has not been determined by precedent is religion.

Section 116 of the Constitution establishes restrictions on laws curtailing religion, religious observance and prohibiting the free exercise of any religion[10]. Great so we have an established tenant for a right and freedom. However, this is limited to only Commonwealth legislation, the States are not bound by the same rules. So yes freedom — but not really and thus not a good foundation to build a freedom of speech.

Another legislative possibility for free speech lies in three separate court decisions, these are as close as Australia gets to free speech. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, Australian Capital Television Pty Ltd v the Commonwealth (1992) 177 CLR 106, and Unions NSW v New South Wales [2013] HCA 58.[11][12] The decisions of these cases essentially infer a freedom of political communication. This is promising however, this never conferred the same rights to the individual. In reading the decision it is clear all that it does is limits the ability of a government to make laws that infringe on the freedom of political communication[13]. It is not a back-door for personal freedom of speech. The reason being is that Australia does not have a freedom of speech.

Finally, people often draw upon the various Conventions and Treaties Australia is signatories to that guarantee freedoms of expression and rights abound. Specifically, people cite the International Covenant on Civil and Political Rights (ICCPR) from December 1966.

Article 19 states:

Everyone shall have the right to hold opinions without interference.

Everyone shall have the right to freedom of expression; this right shall include 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 his choice.[14]

This is a very admirable International Covenant and I truly believe we should do our best to live up to everything that it contains, and it contains much more than that cited just here. What it does not contain is anything that requires a signatory State to comply, nor are there sanctions for not complying. Yes, there can be a finger-shake and crossed look from the United Nations, but functionally this is a non-binding Covenant.

International law, which this is, is separate from Australia’s domestic law. The treaties that Australia ratifies only become part of Australia’s domestic law when the parliament passes legislation incorporating the treaty into the domestic law. In the absence of legislation, treaties cannot impose obligations on individuals nor create rights in domestic law. Australia has NOT ratified this Covenant into law, nor is there any push to do so. As far as I am aware Australia has only ever ratified one International Convention and that relates to International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which has NO free speech component, in fact the legislation that was formulated and passed in Australia limits free speech in relation to racial vilification.

Australia has no right to free speech — and — this is ok. We are not walled behind barriers of censorship; we are a free fully functioning democratic society with robust discussions in media and more widely across the country. BUT! Please stop citing a right to free speech for Australia that just does not exist.

[1] https://www.law.cornell.edu/constitution/first_amendment

[2] R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539 at 587.

[3] Edith Cowan University Vice-Chancellor’s Oration. The Constitution and the Protection of Human Rights. Chief Justice Robert French 20 November 2009, Perth, p. 31.

[4] Bonnard v Perryman [1891] 2 Ch 269 at 284 and see R v Police of the Metropolis; Ex parte

Blackburn (No 2) [1968] 2 QB 150 at 155; Wheeler v Leicester City Council [1995] AC 1054;

Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 220.

[5] https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/1-the-inquiry-in-context/traditional-rights-freedoms-and-privileges-2/

[6] https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/1-the-inquiry-in-context/traditional-rights-freedoms-and-privileges-2/

[7] Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 1898 at 666

also cited in Williams G, The Case for an Australian Bill of Rights: freedom in the war on terror

(UNSW Press, 2004) at 21.

[8] Edith Cowan University Vice-Chancellor’s Oration. The Constitution and the Protection of Human Rights. Chief Justice Robert French 20 November 2009, Perth, p. 13.

[9] Quick J and Garran R R, The Annotated Constitution of the Australian Commonwealth (Sydney,

Angus &Robinson, 1901) 622.

[10] https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Foreign_Affairs_Defence_and_Trade/Freedomofreligion/Interim_Report/section?id=committees%2Freportjnt%2F024110%2F25178

[11] https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-information-opinion-and-expression

[12] 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

[13] Edith Cowan University Vice-Chancellor’s Oration. The Constitution and the Protection of Human Rights. Chief Justice Robert French 20 November 2009, Perth, p. 17.

[14] https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx and https://www.findlaw.com.au/articles/4529/do-we-have-the-right-to-freedom-of-speech-in-austr.aspx

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