Justifications for encroachments

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’.[36] 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.[37]

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.’[38]

2.23       Laws limiting freedom of speech have been justified:

  • to prevent the publication or dissemination private or confidential information,[39] including the identity of vulnerable persons;

  • to protect national security;[40] or

  • to prevent or restrict dissemination of indecent or classified material.

2.24       Similarly, laws prohibit, or render unlawful, speech that causes harm, distress or offence to others through incitement to violence,[41] harassment, intimidation[42] or discrimination.[43]

2.25       International law provides that freedom of expression may be justifiably limited where, for example, an individual’s privacy is interfered with.[44]

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’.[45]

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.