The common law

3.1          Freedom of speech has been characterised as one of the ‘fundamental values protected by the common law’[1] and as ‘the freedom par excellence; for without it, no other freedom could survive’.[2]

3.2          This chapter discusses the source and rationale of the common law right of freedom of speech; [3] how this right is protected from statutory encroachment; and when laws that interfere with freedom of speech may be considered justified, including by reference to the concept of proportionality.[4]

3.3          The High Court of Australia has stated that freedom of speech ‘is a common law freedom’ and that it ‘embraces freedom of communication concerning government and political matters’:

The common law has always attached a high value to the freedom and particularly in relation to the expression of concerns about government or political matters … The common law and the freedoms it encompasses have a constitutional dimension. It has been referred to in this Court as ‘the ultimate constitutional foundation in Australia’.[5]

3.4          In Australian law, particular protection is given to political speech. Australian law recognises that free speech on political matters is necessary for our system of representative government:

Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community.[6]

3.5          Free speech or free expression is also understood to be an integral aspect of a person’s right of self-development and fulfilment.[7] Professor Eric Barendt writes 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’.[8]

3.6          This freedom is intrinsically important, and also serves a number of broad objectives:

First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’. Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.[9]

3.7          Freedom of speech has, of course, been defended and advocated in the works of leading philosophers and jurists from Aristotle in the 4th century BCE,[10] John Milton in the 17th century,[11] J S Mill in the 18th century,[12] through to John Rawls, Ronald Dworkin and Eric Barendt in the 20th century.[13]