3.186 Legislation prohibits, or renders unlawful, speech or expression in many different contexts. However, some of these provisions relate to limitations that have long been recognised by the common law itself, such as obscenity and sedition.
3.187 Numerous Commonwealth laws may be seen as interfering with freedom of speech and expression. There are, for example, more than 500 government secrecy provisions alone.
3.188 In the area of commercial and corporate regulation, a range of intellectual property, media, broadcasting and telecommunications laws restrict the content of publications, broadcasts, advertising and other media products. In workplace relations context, anti-discrimination law, including the general protections provisions of the Fair Work Act, prohibit certain forms of speech and expression.
3.189 Some areas of particular concern, as evidenced by parliamentary committee materials and other commentary, are:
various counter-terrorism offences provided under the Criminal Code and, in particular, the offence of advocating terrorism;
various terrorism-related secrecy offences in the Criminal Code, Crimes Act and ASIO Act and, in particular, that relating to ‘special intelligence operations’; and
anti-discrimination laws and, in particular, s 18C of the RDA.
3.190 Aspects of Australia’s counter-terrorism laws might be reviewed to ensure that the laws do not unjustifiably interfere with freedom of speech. Such a task would fall within the role of the Independent National Security Legislation Monitor (INSLM), who reviews the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis. This role includes considering whether the laws contain appropriate safeguards for protecting the rights of individuals, remain proportionate to any threat of terrorism or threat to national security or both, and remain necessary. The Acting INSLM, the Hon Roger Gyles AO QC, announced on 30 March 2015 that his first priority was to ‘review any impact on journalists’ of the operation of s 35P of the ASIO Act. The review of s 35P is now current.
3.191 Anti-discrimination law may also benefit from more thorough review in relation to implications for freedom of speech. In particular, s 18C of the RDA has been the subject of considerable recent controversy. Concerns about the operation of anti-discrimination law in relation to freedom of religion may also raise related freedom of speech issues.
3.192 There may also be reason to review the range of legislative provisions that protect the processes of tribunals, commissions of inquiry and regulators. As discussed above, these laws may unjustifiably interfere with freedom of speech—and may be unconstitutional—in prohibiting criticism of public officers engaged in performing public functions.
3.193 Finally, the Australian Government should give further consideration to the recommendations of the ALRC in its 2009 report on secrecy laws. In particular, the ALRC recommended that ss 70 and 79(3) of the Crimes Act should be repealed and replaced by new offences in the Criminal Code. For example, s 70 might be replaced with a new offence requiring that the disclosure of Commonwealth information did, or was reasonably likely to, or intended to:
damage the security, defence or international relations of the Commonwealth;
prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;
endanger the life or physical safety of any person; or
prejudice the protection of public safety.
See Australian Law Reform Commission, Secrecy Laws and Open Government in Australia, Report No 112 (2009).
Aspects of these laws can also be considered as interfering with freedom of movement or freedom of association, discussed in Chs 5–6.
Independent National Security Legislation Monitor Act 2010 (Cth) s 6(1)(b).
See Australian Government Department of the Prime Minister and Cabinet, above n 112.
See Ch 4.
Australian Law Reform Commission, Secrecy Laws and Open Government in Australia, Report No 112 (2009).
Ibid rec 4–1.
Ibid rec 5–1.