Freedom of Speach

International Background

In 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 19 affirms the right to free speech:

Article 19 provides: "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".

Article 19 of the 1966 United Nations International Covenant on Civil and Political Rights (ICCPR) states that: "Everyone shall have the right to freedom of expression ... "

Australia is a signatory to the ICCPR and, in order to incorporate treaties and conventions into Australian law, governments must pass a specific Act of Parliament. Although some parts of the treaty have been implemented into law, such as the Human Rights Commission Act 1981, no government has implemented the free speech provisions and therefore they are not enforceable by Australian courts.

Freedom of Speech and the Constitution

The Australian Constitution does not have any express provision relating to freedom of speech.

In theory, therefore, the Commonwealth Parliament may restrict or censor speech through censorship legislation or other laws, as long as they are otherwise within constitutional power.

Since 1992 decisions of the High Court have indicated that there are implied rights to free speech and communication on matters concerning politics and government, e.g. permitting political advertising during election campaigns. (See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1993-1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1993-1994) 182 CLR 211; Cunliffe v The Commonwealth (1993-1994) 182 CLR 272; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Levy v Victoria (1997) 189 CLR 579).

This is known as the 'implied freedom of political communication'. Issues arising from these decisions include defining when communication is 'political' and when the freedom should prevail over competing public interests.(For example see Coleman v P and Anor [2001] QCA 539, Queensland Court of Appeal. The Court upheld the right of Townsville City Council to fine Patrick Coleman for addressing a crowd in a shopping mall, despite Coleman's defence of a constitutional right to free speech. In January 2002 Coleman applied to appeal to the High Court. (http://www.active.org.au/adelaide/news/display.php3?article_id=143)

Back to Why a bill of rights?