Debunking Misconceptions: Free Speech

“I can say what I want, it’s a free country.”

In politically and socially divisive times, one often hears the term ‘my freedom of speech’ as a bulwark against fair or unfair condemnation of another’s view. As we see this sort of thing often and are largely in agreement that free speech is good and important, it is easy to think that one’s speech is steadfastly and universally protected by the State.

“Congress shall make no law… abridging the freedom of speech, or of the press.”

That’s great. But it’s the first amendment to the United States Constitution. We don’t really have anything similar in Australia.

There is no Commonwealth legislation that explicitly affords a general right to freedom of expression.

In the Australian Constitution, sections 7 and 24 provide for the public’s right to vote for candidates and parties in federal elections.

The High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 said, in consideration of the rights imbued in sections 7 and 24, that communication concerning political matters that informs voters is protected as follows:

(a)   not by conferring personal rights on individuals; but

(b)   by preventing the government from making laws that curtails this freedom.

However, the High Court also went on to say that not even this protection is absolute and governments can make laws subverting some political communications in certain circumstances.

On the flip side, there are lots of laws that prohibit all sorts of communications.

There are laws against making or spreading documents inciting or supporting terrorism. Laws against menacing, harassing or offensive communication. Laws against providing false or misleading information. Laws against the circulation of certain State documents. Laws against certain forms of discrimination, intimidation and harassment made against someone based on race, colour, national or ethnic origin or gender.

When traversing the free speech landscape in Australia, one should do so knowing that many varying forms of speech are prohibited and there is no explicit protection of ‘free speech’ in the Constitution.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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