AustLit

FREEDOM OF SPEECH

Most Australians know about the first amendment in the US Constitution guaranteeing freedom of the press and free speech. But Australia does not have a Bill of Rights, meaning that freedom of speech is not explicitly recognised or protected. Instead, the right to free speech is seen as inherent in a free and democratic society.

But competing with it are many other social objectives: protecting people’s reputations (defamation), upholding the court process (contempt and restrictions on publication of some information), protecting children and sometimes adults from violent or sexually explicit material (through a classification system, obscenity laws and internet filters), national security (sedition laws) and fostering tolerance (racial vilification).

Without an explicit guarantee, the right to free speech is vulnerable to laws that are often introduced for sound policy reasons, but with serious consequences for free speech. Hence there is an ongoing debate in Australia about where the line should be drawn. Apart from the implied freedom discussed below, the courts are obliged to uphold a law that shows a clear intention to restrict freedom of speech.

In the 1960s, most countries relaxed their laws against obscenity. But in the wake of the 11 September 2001 terrorist attacks, most Western democracies have been prepared to countenance tougher sedition laws. Groups such as Civil Liberties Australia argue that not having a Bill of Rights makes Australia more vulnerable to curtailing of the right of free speech. It also leaves those who assert the right to free speech having to fight long and expensive court cases.

The High Court has delivered several important judgments that have clarified a right to political expression. This takes the form of an ‘implied freedom of political communication’, which the court has inferred from the nature of the electoral process laid down by the federal Constitution.

In 1992 it declared the Political Broadcasts and Political Disclosures Act 1991 invalid. This law, introduced by the Hawke Labor government, prohibited the broadcasting of politically related material on electronic media during the period leading up to an election (except in news, current affairs or talkback radio programs). Instead, it obliged broadcasters to provide ‘free time’ to political parties to air advertisements.

The commercial broadcasting industry mounted a challenge on the grounds that the new laws interfered with a right to free political speech implied in the Constitution. They also argued that the parts of the Act requiring that broadcasters give ‘free time’ to certain people was an unjust acquisition of property. The Commonwealth government argued that the laws enhanced democracy because they prevented corruption that could accompany political fundraising and that they would allow parties that did not have large amounts of money to access radio and television broadcasting.

The High Court ruled that the Act had the effect of limiting the freedoms previously enjoyed by citizens to publicly discuss political matters. The Act impaired freedom of communication, and privileged those political parties or interest groups already represented in the parliament. The law would also hinder groups such as trade unions, charities or employers’ groups with a legitimate desire to make political statements.

In 1997, the High Court found freedom of political speech implied by the words of the Constitution. This means that Australians are free to talk about politics. In Lange v Australian Broadcasting Corporation, the Prime Minister of New Zealand, David Lange, sued the ABC for defamation over a 1990 broadcast on Four Corners. The program, a re-run of a NZ Frontline program, alleged that the New Zealand Labour Party had been improperly under the influence of large business interests, as the result of large donations to its 1987 election campaign.

The court sought to clarify the interaction between the implied freedom of political communication and defamation laws. The implied freedom was held to be an ongoing freedom, and not limited to election periods. The court modified the requirements of the common-law defence of qualified privilege because it did not adequately accommodate the requirements of the implied freedom of political communication. In the context of a publication about governmental or political affairs, the court held that all voters had an interest in receiving information about such matters, so there was a duty on publishers to publish that information.

In theory, the High Court opened the door to a far more liberal discussion of the activities of politicians without fear of being sued for defamation, but in practice the courts have held publishers to high standards of reasonableness, as they did in the case of Obeid v John Fairfax Publications in 2006.

In early 2013, the High Court further extended the freedom of political speech. In a case brought by the union movement against a NSW government ban on union and corporate donations, the court said such a ban ‘impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution’.

But whether freedom of speech extends beyond political speech is doubtful. Two 2013 de- cisions in the High Court suggest limits. In one case, street preachers in Adelaide’s Rundle Mall lost their fight to espouse Christian fundamentalism in a public setting. In the other, the judges were equally divided on whether people who allegedly sent offensive letters to the families of soldiers killed in Afghanistan should have their right to do so recognised by the High Court.

Some constraints on free speech, such as defamation and contempt, must be enforced through the courts, and judges are often cognisant of the balancing act they must perform. The far more contentious area is when governments propose to enforce the constraints on free speech themselves—through either criminal sanctions or regulatory bodies. And when governments propose to involve themselves in qualitative judgments about what is fair, the warning lights flash.

Digital media are now challenging previous philosophical assumptions about when governments are justified in intervening to regulate media. For example, in broadcasting, governments imposed obligations through licence conditions because of scarcity of spectrum, which was said to give rise to obligations on broadcasters to meet certain standards: fairness in news broadcasts, Australian content and requirements to serve local communities. Newspapers were said to have no real barriers to entry, so were permitted to self-regulate through an industry-funded Australian Press Council.

But that philosophy has been under challenge as digital services proliferate and the boundaries between media become blurred. Starting a blog or a website has no real barriers to entry, so why should the internet be government-regulated? And newspapers regularly broadcast video news on their websites, so why should they be regulated differently from broadcasters? If there are multiple channels, why not let the viewer decide what they want to see and hear? One answer has been a drift towards self-regulation or hybrid models, where the government regulator, now the Australian Communications and Media Authority, serves only as a backup. That trend is likely to continue.

But in the wake of widespread phone hacking by the UK News of the World, there was a fierce backlash against the claim by the press that it can regulate itself. Several senior News Corp staff were prosecuted on criminal charges, and the public felt short-changed by self-regulatory bodies’ failure to deal with the allegations. That concern was taken up in Australia by the Gillard Labor government.

Retired judge Ray Finkelstein was appointed in 2012 to produce a report for the government that proposed a new model of regulation of the media. It introduced Bills that would, among other things, create a Public Interest Media Advocate, which many media saw as introducing potential government influence over their freedom of speech. The Bills received very little support in the parliament, even from government MPs. At the same time, the government’s Convergence Review included treatment of some similar issues. But after the Finkelstein report, and the failed 2013 media reforms of Minister for Communications Senator Stephen Conroy, there was little government appetite to take on media proprietors.

The debate about the need for more explicit protections for free speech might have fallen off the agenda for now, but is almost certain to be revived. Ironically, it might take a reversal to prompt more steps forward.

REF: R. Pullan, Guilty Secrets (1994).

ANNE DAVIES