2.21 It is widely recognised that freedom of speech is not absolute. Conventions enshrining the freedom recognise that it may be subject to laws necessary to protect the rights or reputations of others, national security, and ‘public health or morals’. 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.
2.22 The difficulty is always balancing the respective rights or objectives. ‘It is difficult to draw a line between speech which might appropriately be regulated and speech which in any liberal society should be tolerated.’
2.23 Laws limiting freedom of speech have been justified:
2.25 International law provides that freedom of expression may be justifiably limited where, for example, an individual’s privacy is interfered with.
2.26 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’.
2.27 Many of these encroachments on free speech may be justified. The ALRC invites submissions identifying those Commonwealth laws that limit free speech and that are not justified, and explaining why these laws are not justified.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 19(3).
Brandenburg v Ohio 395 US 444 (1969).
Barendt, above n 4, 21.
An individual’s privacy is, to some extent, protected by the equitable action for breach of confidence and under the Privacy Act 1988 (Cth).
See for example, Crimes Act 1914 (Cth) s 70.
Criminal Code Act 1995 (Cth) s 11.4.
Fair Work Act 2009 (Cth) s 676.
Racial Discrimination Act 1975 (Cth) s 18C.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 17(1).
Canada Act 1982 c 11, Sch B Pt 1 (’Canadian Charter of Rights and Freedoms’) s 1. See also, Charter of Human Rights and Responsibilities 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; Bill of Rights Act 1990 (NZ) s 5.