4.1        Freedom of speech has been described as ‘the freedom par excellence; for without it, no other freedom could survive’.[1] Freedom of speech is ‘closely linked to other fundamental freedoms which reflect … what it is to be human: freedoms of religion, thought, and conscience’.[2]

4.2        This chapter discusses the source and rationale of the common law right of freedom of speech; 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        Free speech and free expression are understood to be integral aspects of a person’s right of self-development and fulfilment. The 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.[3]

4.4        At the same time, it is widely recognised that freedom of speech is not absolute. In Australia, legislation prohibits, or renders unlawful, speech or expression in many different contexts. Some limitations on speech have long been recognised by the common law itself, such as obscenity and sedition, defamation, blasphemy, incitement, and passing off.

4.5        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. 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 the context of workplace relations, anti-discrimination law—including the general protections provisions of the Fair Work Act 2009 (Cth)—prohibit certain forms of speech and expression.

4.6        Some areas identified as being of concern are:

  • various counter-terrorism offences provided under sch 1 of the Criminal Code Act 1995 (Cth) (Criminal Code) and, in particular, the offence of advocating terrorism;

  • various terrorism-related secrecy offences in the Criminal Code, Crimes Act 1914 (Cth) and Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) and, in particular, those relating to ‘special intelligence operations’;

  • Commonwealth secrecy offences generally, including the general secrecy offences in ss 70 and 79 of the Crimes Act; and

  • anti-discrimination law and, in particular, s 18C of the Racial Discrimination Act 1975 (Cth) (RDA).

4.7        Counter-terrorism and national security laws, including those mentioned above, should be subject to further review to ensure that the laws do not interfere unjustifiably with freedom of speech, or other rights and freedoms. Further review on this basis could be conducted by the Independent National Security Legislation Monitor (INSLM) and the Parliamentary Joint Committee on Intelligence and Security (Intelligence Committee).

4.8        The ALRC has not established whether s 18C of the RDA has, in practice, caused unjustifiable interferences with freedom of speech. However, it appears that pt IIA of the RDA, of which s 18C forms a part, would benefit from more thorough review in relation to freedom of speech.

4.9        In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. In some respects, the provision is broader than is required under international law to prohibit the advocacy of racial hatred, broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.

4.10     However, any such review should take place in conjunction with a more general review of anti-vilification laws. This could consider not only existing encroachments on freedom of speech, but also whether existing Commonwealth laws serve their purposes, including in discouraging the urging of violence towards targeted groups distinguished by race, religion, nationality, national or ethnic origin or political opinion. Greater harmonisation between Commonwealth, state and territory laws in this area may also be desirable.

4.11     There is also reason to review the range of legislative provisions that protect the processes of tribunals, commissions of inquiry and regulators. Some of these laws may unjustifiably interfere with freedom of speech—and may be unconstitutional—in prohibiting criticism of public officers engaged in performing public functions.

4.12     Finally, the Australian Government should give further consideration to the recommendations of the ALRC in its 2009 report on secrecy laws,[4] and to whether Commonwealth secrecy laws—including the Australian Border Force Act 2015 (Cth)—provide for proportionate limitations on freedom of speech.