Do We Have the Right to Freedom of Speech in Australia?
The short answer is no, we do not have the right to freedom of speech in Australia.
Freedom of speech is important for democracy in Australia. It provides people with the information they need to become aware of issues and decide what action to take. However, there is nothing in the Australian Constitution that protects your right to freedom of speech.
We don’t have the right to freedom of speech but we have an implied freedom in political contexts. The High Court has implied the freedom of political communication from the Australian Constitution. This includes communication necessary to ensure we have proper elections and votes. However, this implied freedom is quite narrow, as it can’t be used as an excuse to disobey Australian laws.
For instance, in Banerji v Bowles, an Immigration Department bureaucrat posted her opinions of the government’s asylum seeker detention policies on Twitter. This was in breach of the Australian Public Service Code of Conduct (‘APSCC’). Mr Banerji argued that the APSCC was invalid, as it breached the implied freedom of political communication. The court rejected this argument, saying that the freedom ‘does not provide a licence to breach a contract of employment’.
The Racial Discrimination Act limits freedom of speech in Australia to deter hate speech. Section 18C makes it unlawful to ‘offend, insult, humiliate or intimidate another person or group of people’. This is based on their ‘race, colour or national or ethnic origin’.
Andrew Bolt infamously breached this section in 2011. Bolt wrote several articles implying that people were identifying themselves as Indigenous to be eligible for scholarships despite their lighter skin colour. The court found that he breached Section 18C. Bolt had to insert a disclaimer before his articles stating that he breached the Discrimination Act.
Implied freedom of political communication can provide you with some protection. However, it cannot be used as a defence for breaching other laws in Australia. Our freedom of speech is also limited by the Discrimination Act to minimise hate speech. To find out more about freedom of speech and whether you or someone else might have breached any laws, please get in touch.