Freedom of speech is typically one of the first human rights to be protected in any national constitution. For example, the first amendment to the United States Constitution famously proclaims:
Congress shall make no law … abridging the freedom of speech, or of the press.
Modern constitutions speak in similar terms, such as that of South Africa:
16. Freedom of expression.
(1) Everyone has the right to freedom of expression, which includes-
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm
2. Everyone has the following fundamental freedoms: …
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
Nations without a written Constitution, such as New Zealand and the United Kingdom, also protect freedom of speech in national human rights instruments. The United Kingdom Human Rights Act 1998 for example protects:
10 Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Protection of freedom of speech is equally pervasive in international law. In particular, the Universal Declaration of Human Rights states:
19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers
This right is reflected elsewhere in instruments such as the International Covenant on Civil and Political Rights.
So far as I am aware, there is only one democratic nation of the world that does not expressly protect freedom of speech in its national Constitution or an enforceable national human rights instrument. That nation is Australia.
As Australians we accept that freedom of speech is one of the bedrocks upon which our democracy is built. Yet, unlike other nations, we have not taken steps to protect freedom of speech in our law.
The strongest protection for freedom of speech in Australian law exists only by way of an implication from the Australian Constitution. The Constitution states in sections 7 and 24 that federal parliamentarians must be ‘directly chosen by the people’. In 1992 in Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth the High Court held that these words necessarily imply that Australians must be able to communicate about political matters.
This freedom is limited to political communication, and so does not extend to the broad range of speech, such as artistic, business, personal or academic expression. Even in regard to political speech, the protection afforded by the implied freedom has proved to be weak. It has been invoked many times in the High Court, but only applied twice to strike down laws, in both cases electoral laws.
This leaves this important human right vulnerable to political interference and breach. In the main, freedom of speech exists only so far as the right is not taken away by politicians and parliaments.
Unfortunately, the weak protection for freedom of speech in Australia is evident in the many occasions upon which the right has been denied. Australia has a litany of laws and practices that infringe the freedom.
For example, a robust democracy depends upon its citizens being able to speak freely during election campaigns. They must be able to criticise policies, parties and candidates without fear of prosecution and tell people about how the electoral process works and how they can use it. However, in 1996 Albert Langer was sentenced to jail for ten weeks for advocating a formal, valid vote. Langer was a political agitator who described John Howard and Paul Keating as ‘Tweedledum and Tweedledee’ and urged voters to put them and their parties equal last on their ballot paper.
The law specifically allowed for such a vote and provided that it was not an informal ballot. However, it also made it a crime to advocate such a vote, something that Langer did with great gusto. He was prosecuted, but his appeal to the High Court failed. Langer went to jail for telling people about a method of voting that was perfectly legal. Amnesty International declared Langer to be the ‘first prisoner of conscience in the country for over twenty years’.
More recently, a number of Australia’s anti-terror laws infringe upon freedom of speech. These include sedition laws passed in 2005, and remodelled some years later, that enable a person to be jailed for up to seven years not for their actions, but for their words.
Another law still bans any book, film or computer game that praises the doing of a terrorist act where this might lead a person, including a person suffering mental illness, to engage in terrorism. Given that Australia’s definition of terrorism encompasses the acts of people such as Nelson Mandela, there is real possibility that a book on his life could be censored.
Another law again grants ASIO an extraordinary power to detain in secret for up to a week an Australian citizen not suspected of any crime. This law makes it an offence to disclose ‘operational information’ about a person’s detention by ASIO within two years of that person being detained. A journalist revealing such information, including the mere fact that someone was detained, can be imprisoned for up to five years. There are no exceptions for fair reporting or if a media story reveals that ASIO has misused its powers or mistreated detainees.
Freedom of speech is vulnerable in Australia, as these and other examples show. This is not consistent with the importance of freedom of speech to our democracy. It is long past time that Australia followed other nations in providing strong legal protection for this fundamental human right.