Justifications for encroachments

3.159   It is widely recognised that freedom of speech is not absolute. Even the First Amendment of the United States Constitution has been held not to protect all speech: it does not, for example, protect obscene publications or speech inciting imminent lawless action.^[197]

3.160   The difficulty is always balancing the respective rights or objectives. Barendt stated that it ‘is difficult to draw a line between speech which might appropriately be regulated and speech which in any liberal society should be tolerated’.^[198]

3.161   Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.^[199]

3.162   Some of the principles and criteria that might be applied to help determine whether a law that interferes with freedom of speech is justified, including those under international law, are discussed below. However, it is beyond the practical scope of this Inquiry to determine whether appropriate justification has been advanced for particular laws.^[200]

3.163   The literature on freedom of speech is extensive and there is considerable disagreement about the appropriate scope of the freedom. Professor Adrienne Stone observed that the ‘sheer complexity of the problems posed by a guarantee of freedom of expression’ makes it unlikely that a single ‘theory’ or ‘set of values’ might be appropriate in resolving ‘the entire range of freedom of expression problems’.^[201]

3.164   In the United States, doctrine on the First Amendment is said to be characterised by a categorical approach, according to which freedom of expression law is dominated by relatively inflexible rules, each with application to a defined category of circumstances.^[202]

3.165   However, the dominant alternative approach is to use a proportionality test. As discussed in Chapter 1, proportionality is the accepted test for justifying most limitations on rights, and is used in relation to freedom of speech.

3.166   For example, the Human Rights Committee in its examination of legislation, asks whether a limitation is aimed at achieving a legitimate objective; whether there is a rational connection between the limitation and that objective; and whether the limitation is proportionate to that objective.^[203] A number of stakeholders expressly endorsed proportionality as a means of assessing justifications for interferences with freedom of speech.^[204]

Legitimate objectives

3.167   Both the common law and international human rights law recognise that freedom of speech can be restricted in order to pursue legitimate objectives such as the protection of reputation and public safety. Many existing restrictions on freedom of speech are a corollary of pursuing other important public or social needs, such as the conduct of fair elections, the proper functioning of markets or the protection of property rights.

3.168   In its consideration of legislation, the Human Rights Committee sometimes simply asks whether a limitation of freedom of speech is aimed at achieving a ‘legitimate objective of promoting or protecting the rights of others’^[205]—a quite open category of limitation. The Centre for Comparative Constitutional Studies agreed that the ‘concept of a legitimate end should encompass a wide range of laws and that only exceptionally would a law be considered not to pursue a legitimate end’.^[206]

3.169   The power of Australian law-makers to enact provisions that restrict freedom of speech is not necessarily constrained by the scope of permissible restrictions on freedom of speech under international human rights law.^[207] However, in considering how restrictions on freedom of speech may be appropriately justified, one starting point is international human rights law, and the restrictions permitted by the ICCPR.

3.170   The ICCPR states that the exercise of freedom of expression ‘carries with it special duties and responsibilities’:

It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.^[208]

3.171   Many of the laws discussed above pursue these objectives. For example, many of the criminal laws—and incitement offences—clearly protect the rights of others, including the right not to be a victim of crime. Some criminal laws, such as counter-terrorism laws, are concerned with the protection of national security or public order.

3.172   The Siracusa Principles define ‘public order’, as used in the ICCPR, as ‘the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded’.^[209]

3.173   Some secrecy laws prohibit the disclosure of information that has the potential to damage national security—such as those in the ASIO Act—or public order. It may be harder to justify secrecy offences where there is no express requirement that the disclosure cause, or be likely to cause, a particular harm.^[210] Arguably, public order is not necessarily engaged where the objective of a secrecy offence is simply to ensure the efficient conduct of government business or to enforce general duties of loyalty and fidelity on employees.

3.174   On the other hand, some regulatory agencies, such as taxation, social security and health agencies, and regulatory and oversight bodies such as corporate regulators, need to strictly control disclosures of sensitive personal and commercial information provided to them by the public. For these agencies, the harm caused by the unauthorised disclosure of this information is not only harm to a person’s privacy or commercial interests, but harm to the relationship of trust between the government and individuals which is integral to an effective regulatory or taxation system, and the provision of government services.^[211] Avoiding this harm may more easily be seen as implicating ‘public order’, in the sense used in the ICCPR.

3.175   To the extent that contempt laws may be characterised as limiting freedom of speech, the laws may be justified as protecting the rights or reputations of others, and public order, as protecting tribunal proceedings can be seen as essential to the proper functioning of society. However, a limitation to a human right based upon the reputation of others should not be used to ‘protect the state and its officials from public opinion or criticism’.^[212]

3.176   Restrictions on freedom of speech under anti-discrimination laws may also be justified under the ICCPR as necessary to respect the rights or reputations of others, including the right to effective protection against discrimination, as provided by art 26.

3.177   Laws to prevent or restrict dissemination of indecent or classified material, such as the Classification Act, may be justified as protecting public health or morals. As discussed above, limitations on unsolicited telemarketing calls contained in the Do Not Call Register Act have been justified as protecting privacy; and tobacco advertising prohibitions as protecting public health.

3.178   There remain other laws restricting freedom of speech and expression that do not as obviously fall within the permissible restrictions referred to in art 19 of the ICCPR.

Proportionality and freedom of speech

3.179   Whether all of the laws identified above as potentially interfering with freedom of speech in fact pursue legitimate objectives of sufficient importance to warrant restricting speech may be contested. However, even if a law does pursue such an objective, it will be important to also consider whether the law is suitable, necessary and proportionate.

3.180   In relation to justifications for limiting freedom of expression, the UN Human Rights Committee has stated:

When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.^[213]

3.181   The UN Human Rights Committee has also observed that the principle of proportionality must take account of the ‘form of expression at issue as well as the means of its dissemination’. For instance, the value placed on ‘uninhibited expression is particularly high in the circumstances of public debate in a democratic society concerning figures in the public and political domain’.^[214] This is consistent with the additional protection afforded under Australian common law to political communication.

3.182   The Centre for Comparative Constitutional Studies submitted that in applying the principles of proportionality to limitations on freedom of speech, regard should be had to the following:

•     whether the law interfering with freedom of speech is ‘content-neutral’ or ‘content-based’;

•     the extent to which the law interferes with freedom of speech including the availability of alternative, less restrictive means; and

•     the nature of the affected speech.^[215]

3.183   In relation to the first of these criteria, a content-based law aims to address harms caused by the content of the message communicated. Defamation laws, hate speech laws, laws regulating obscenity or pornography, and laws directed at sedition were given as examples of content-based laws.

3.184   In contrast, a content-neutral law is directed towards some other purpose unrelated to the content of expression. Laws directed to the ‘time, place and manner’ in which speech occurs such as laws that regulate protest—by requiring that protest be limited to certain places or times—laws that impose noise controls, or a law that limits the distribution of leaflets directed at preventing litter were given as examples of content-neutral laws.^[216]

3.185   The Centre for Comparative Constitutional Studies submitted that content-based laws should, ‘as a general matter, be considered more difficult to justify than content-neutral laws’.^[217] The Centre also submitted that, as a general matter, the more extensive the limitation on speech, the more significant the justification for that limitation must be. Therefore extensive or ‘blanket’ bans on speech in a particular context or of a particular kind, will be more difficult to justify than laws that apply in only some circumstances or in some places. Further, some speech should be regarded as especially valuable. In particular, speech about political matters, in various forms, was said to require a higher level of protection, and laws that operate to interfere with political speech should require special justification.^[218]