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Do we have a constitutional right to free speech?

2 July 2021

4:00 AM

2 July 2021

4:00 AM

“Freedom of speech may not be protected by Australia’s constitution, high court judge says,” screamed a recent headline in The Guardian Australia

The report focussed on a challenge to Australia’s foreign influence transparency scheme by LibertyWorks. It cited newly appointed High Court Justice Simon Steward as stating that freedom of political communication implied in the constitution may not exist and was not “settled law”.  

Chief Justice Susan Kiefel and Justices Patrick Keane, Jacqueline Gleeson, James Edelman and Steward agreed the scheme was valid and dismissed LibertyWorks’ action. 

The report went on:  

The opinion (of Justice Steward) could be seen as a shift towards more conservative legal interpretations after the former attorney general Christian Porter was lobbied to appoint more restrained, “black letter” judges to the court.

While the decision of one justice is unlikely to prompt more than 25 years of legal thinking to be overturned, it marks Steward as the most conservative high court judge since Dyson Heydon, who declared in 2013 that the implied freedom of speech was a “noble and idealistic enterprise which has failed, is failing, and will go on failing”. 

While the other four justices accepted Australians have a right to freedom of speech, Steward said that “for my part, with the greatest respect, it is arguable” that the human rights protection “does not exist”.

“It may not be sufficiently supported by the text, structure and context of the constitution and … it is still not yet settled law,” Steward said.

He argued that the “continued division” over how to apply the freedom was “telling”. “It may suggest that the implied freedom cannot be adequately defined.”

Steward said he was not the only high court judge who has been concerned about the implied freedom, citing judgments by Justices Daryl Dawson in 1994, Ian Callinan in 2001 and Heydon in 2013.

The report uses the terms ‘freedom of speech’ and ‘freedom of political communication’ interchangeably. However, while there may be intersection between the two, they are NOT the same thing. In fact, if one reads the judgment, in particular at paragraph 249, it is clear Justice Steward is referring to the implied freedom of political communication, not freedom of speech generally.

Peter Ridd’s appeal to the High Court was not based on the implied freedom of political communication, but, among other things, on freedom of speech and intellectual freedom, especially in relation to employment contracts. 

As we know, the Australian Constitution has no explicit free speech protection, as can be found in the First Amendment to the American Constitution. The implied freedom of political communication in the Australian Constitution was first recognised by the High Court in 1992 in Australian Capital Television v Commonwealth and Nationwide News Ltd v Wills 

In these cases, the High Court drew an implication of freedom of communication relating to Commonwealth governmental affairs from the system of representative government that the Constitution creates, and the implied rights of its citizens thereof. In particular, sections 7 (establishing the Senate) and 24 (establishing the House of Representatives) of the Australian Constitution provides that Senators and Members of the House of Representatives shall be “directly chosen by the people”.

In Lange v Australian Broadcasting Corporation, the framework for the application of this right was set out. In sum, any law which purports to restrict the right to freedom of political communication must be proportionate, that is, is it ‘reasonably appropriate and adapted’ to achieving a legitimate end? This will require a balance between the importance of the purpose served by the restriction and the extent such restriction imposes on the implied freedom. This approach was affirmed by the High Court in McCloy v New South Wales.

As Moens and Trone discuss at length, the notion of this implied right is controversial. Indeed, as James Allan wrote in his magazine piece last week, in 1992, the then High Court ‘discovered’ the implied right after it had apparently lain dormant and invisible for 90 years. He adds that the reasoning supporting the existence of this right is so implausible that in his view the judges made it up.  

This has meant that successive judgments handed down by the High Court on the implied right seem contradictory. In the 2019 cases of Clubb v Edwards and Preston v Avery, the High Court dismissed arguments that laws enforcing ‘buffer zones’ outside abortion clinics infringed the implied right of freedom of political communication, notwithstanding the High Court has held continually that on-site protest activities constitute ‘political communication’, most notably in the Brown v Tasmania. In that case provisions of the Tasmanian Protesters Act 2014 were declared invalid since they were a burden on the implied freedom in a way that was not reasonably appropriate and adapted, or proportionate, to the legitimate purpose of protecting businesses and their operations from demonstrators. 

The right to freedom of speech, while it may inform the implied right of freedom of political communication, is a stand-alone, fundamental common law right. It was described in 1966 by Campbell and Whitmore as ‘the freedom par excellence; for without it, no other freedom could survive’. As the Full Federal Court observed in Minister for Immigration and Citizenship v Haneef: 

Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction. The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal.

This view was endorsed in Brown, and forms part of the ‘proportionality’ test described above.  

Political communication often engages broad matters of public policy, including matters in relation to religious freedom. There is therefore a strong intersect between the right to political communication, the right to freedoms of speech, as well as the rights to freedom of belief, conscience, movement and association.  

The Australian Law Reform Commission on its website quotes Professor Eric Barendt in this regard. He wrote that freedom of speech is “closely linked to other fundamental freedoms which reflect … what it is to be human: freedoms of religion, thought, and conscience”. 

Laws that seek to protect people from speech that they do not want to hear, as section 18C of the Racial Discrimination Act does, put in jeopardy the basic rights of all persons, both under common law and as codified universally under international human rights laws – see in particular Articles 18 and 19 of the International Covenant on Civil and Political Rights – to express opinions in public. The constitutional right to implied freedom of political communication is only one aspect of this overarching fundamental freedom.  

Dr Rocco Loiacono is a senior lecturer at Curtin University Law School. 

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