A common law right

2.1          Freedom of speech is a fundamental common law right.[1] It has been described as ‘the freedom par excellence; for without it, no other freedom could survive’.[2]

2.2          This chapter discusses: the source and rationale of freedom of speech; how it is protected from statutory encroachment; and when laws that encroach on freedom of speech may be justified. The ALRC calls for submissions on two questions.

Question 2–1              What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified?

Question 2–2              Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?

2.3          In Monis v The Queen (2013), Chief Justice French explained the source of freedom of speech:

Freedom of speech is a common law freedom. 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. Lord Coleridge CJ in 1891 described what he called the right of free speech as ‘one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done’. 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’.[3]

2.4          Free speech or free expression is understood to be an integral aspect of a person’s right of self-development and fulfilment.[4] 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’.[5]

2.5          This freedom is intrinsically important, but 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.[6]

2.6          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.[7]

2.7          The common law on freedom of speech both reflects and informs the works of some leading philosophers and jurists from Aristotle in the 4th century BCE,[8] JS Mill in the 18th century,[9] through to John Rawls, Ronald Dworkin[10] and Eric Barendt[11] in the 20th century.[12] Freedom of speech has been enshrined in founding constitutions for modern republics such as that of France and the United States of America.