Justifications for limits on freedom of speech

4.41     In the US, doctrine on First Amendment freedom of speech is said to be characterised by a categorical approach to justification, according to which the law is dominated by relatively inflexible rules, each with application to a defined category of circumstances.[51]

4.42     In other jurisdictions, bills of rights generally allow for limits on rights provided the limits are reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.[52] Article 19.3 of the ICCPR and the Siracusa Principles[53] also provide guidelines on when limits on freedom of speech may be justified.

4.43     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’.[54]

4.44     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.[55]

4.45     Some stakeholders expressly endorsed proportionality as a means of assessing justifications for interferences with freedom of speech.[56] As discussed above, in relation to the constitutional implied freedom of political communication, a form of proportionality test has been expressly endorsed by the High Court.[57]

Legitimate objectives

4.46     The threshold question in a proportionality test is whether the objective of a law is legitimate. Outside constitutional contexts, some guidance on the legitimate objectives of a law that interferes with freedom of speech may be derived from the common law and international human rights law.

4.47     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.

4.48     In the context of the constitutional implied freedom of political communication, the purpose of a law limiting freedom of speech must be compatible with the constitutionally prescribed system of government. On this approach, the High Court may consider an objective to be legitimate provided simply that it is not directed to regulating political communication.[58]

4.49     Another judicial approach is to address the question of legitimate objective by reference to considerations of the common law. For example, in Monis, Hayne J observed that ‘the common law has never recognised any general right or interest not to be offended’[59] and that it would be incongruent with common law rules of defamation, to find as legitimate, a statutory purpose of preventing serious offence without any defence of truth or qualified privilege.[60]

4.50     Associate Professor James Stellios has written that the broader High Court approach should be preferred ‘as it allows for political processes to determine legitimate ends; not traditional conceptions of legally cognisable rights or interests’. That is, provided a law is ‘not directed to regulating political communication, it should be considered to be legitimate, and then subjected to the rigour and transparency of a proportionality analysis’.[61]

4.51     International law gives some other guidance on what legitimate objectives may justify restrictions on freedom of speech more generally. 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.[62]

4.52     Many laws that restrict freedom of speech can be seen as pursuing these objectives. For example, many 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.[63]

4.53     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.[64] 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.

4.54     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.[65] Avoiding this harm may more easily be seen as implicating ‘public order’, in the sense used in the ICCPR.

4.55     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, because protecting tribunal proceedings can be seen as essential to the proper functioning of society. A limitation to freedom of speech based upon protecting the reputation of others should not be used to ‘protect the state and its officials from public opinion or criticism’.[66]

4.56     However, the justification of proceedings for contempt of court or Parliament ‘lies not in the protection of the reputation of the individual judge or parliamentarian but in the need to ensure that parliaments and courts are able effectively to discharge the functions, duties and powers entrusted to them by the people’.[67]

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

4.58     Laws to prevent or restrict dissemination of indecent or classified material, such as the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (Classification Act), may be justified as protecting public health or morals. As discussed below, limitations on unsolicited telemarketing calls contained in the Do Not Call Register Act 2006 (Cth) have been justified as protecting privacy; and tobacco advertising prohibitions as protecting public health.[68]

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

Balancing rights and interests

4.60     Eric Barendt has 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’.[69] The difficulty is always balancing the respective rights or objectives.

4.61     The UN Human Rights Committee has 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’.[70] This is consistent with the additional constitutional protection afforded under Australian common law to political communication.

4.62     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.[71]

4.63     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.

4.64     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 that limit the distribution of leaflets directed at preventing litter were given as examples of content-neutral laws.[72]

4.65     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’.[73] 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.[74]

4.66     These views are consistent with High Court statements that a distinction may be made between ‘restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted’.[75] Under a proportionality test, a more compelling justification for the burden on political communication is required for restrictions on content rather than mode of communication.