Some of us may presume that because we live in a liberal democracy like Australia, certain personal freedoms are a given – like free speech – and that any imposition on a person’s speech would be viewed as an attempt to curtail the freedom. Additionally, we’re going to presume (for the sake of the topic of this piece) that many Australians would be familiar with the US Constitution and specifically the First Amendment which states; “Congress shall make no law… abridging the freedom of speech, or of the press…”, and we’re going to also guess (again for efficacy) that some people may believe that we here in Australia also enjoy a similar type of Constitutional protection: But do we? Well… it must be said that Australia’s free speech laws are interesting to say the least.
First, let’s get the easy part out of the way: Australia does not have an explicit First Amendment equivalent enshrining the protection of freedom of speech in our Constitution. So where does this leave us? Well, it wasn’t until 1992 in Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth (ACTV) 177 CLR 1 where the issue of free speech was significantly dealt with.
Free speech: A personal freedom?
In ACTV the High Court had to consider whether there was an implied Constitutional right to free speech in regards to governmental and political affairs. The majority in the High Court held that there was indeed an implied freedom of political communication in the Constitution, basing their decision on the representative nature of our democracy. As a consequence of the High Court decision in ACTV, the ability of the Commonwealth to legislate against the implied freedom of communication became limited.
However, it was the matter of Theophanous v Herald & Weekly Times (1994) 182 CLR 104 where the implied freedom of political communication was truly turned on its head, with the High Court allowing a “constitutional defence” to be put forward regarding an action of defamation.
Is there a constitutional defence to actions of defamation?
The decision of Theophanous may have seem to have heralded a new personal right to free speech, but it was short lived, with the judgment of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 categorically providing certainty to the position of the right in Australia.
The matter of Lange involved the former Prime Minister of New Zealand initiating action against the ABC for defamatory imputations during an episode of Four Corners. In response, the ABC relied on the Theophanous ‘constitutional defence’, however, the High Court unanimously held that Theophanous was no longer good law, and instead extended the notion of qualified privilege. The Justices in Lange placed a particular focus on ss 7 and 24 of the Constitution which provide:
Section 7: “The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.”
Section 24: “The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.”
The High Court in Lange noted that ss 7 and 24, as well as the other related sections of the Constitution, protect the freedom of communication allowing people to exercise a free and informed choice as electors. However, “[t]hose sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.”
The implied freedom of political communication is limited
The High Court in Lange stated that the protection of freedom of communication in the Constitution is not absolute, and that “[i]t is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.”
The Justices emphasised that ss 7 and 24 of the Constitution – and reinforced by other sections – concerns itself with the notion of responsible government and the amendment of the Constitution operates in such a manner as a restriction on legislative power. The High Court further noted that the freedom will not invalidate any laws which were enacted that satisfied some other legitimate end, as long as two conditions are met:
- The first condition is that the object of law is attuned with the preservation of the “… constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes”; and
- The second condition is that the law is “… reasonably appropriate and adapted to achieving that legitimate object or end.”
Perhaps the biggest thing that we can take away from the unanimous Lange decision is that the High Court provided certainty to the area of free speech in Australia, and that overall, the implied freedom of political communication gives rise to a system of representative and responsible governance.