Comment

Kieran Pender
The status of free speech in Australia

Thirty years ago this week, something extraordinary happened. In two judgements issued on the same day by the High Court, a central democratic principle – the implied freedom of political communication – was explicitly recognised for the first time. A constitutional shield for free speech came into existence, an implication identified or, to critics, “invented” by the judiciary, in the name of upholding our democracy.

“You must know what it is you are voting for,” Maurice Byers, QC, counsel for one of the parties, had urged the court at an earlier hearing. His call was heeded on an otherwise unremarkable spring day in Canberra, on September 30, 1992. These parallel decisions – Australian Capital Television Pty Ltd v Commonwealth and Nationwide News Pty Ltd v Wills – gave birth to one of the most important constitutional principles in Australian law.

The idea was simple enough. The constitution provides that the federal parliament is chosen by voters. Inherent in that notion, Byers argued, was that voters must be informed about their political choices. The court agreed.

“Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative,” wrote the then chief justice, Anthony Mason.

This was not, members of the court stressed, an individual right to free speech, as exists under the United States constitution in the famous first amendment. Such an approach would run into a historical obstacle: the framers of the Australian constitution, closely familiar with the American approach, had deliberately eschewed it in the rights context (while adopting elements of American constitutionalism elsewhere in our founding document).

“But, unlike freedoms conferred by a Bill of Rights in the American model, the freedom cannot be understood as a personal right,” explained Justice Gerard Brennan, “rather, it is a freedom … an immunity consequent on a limitation of legislative power.” The freedom did not give Australians a right to speak, but it prevented parliament from making laws curtailing that speaking. Whether this is a sound distinction has been a matter of much debate, but it remains central to the implied freedom principle today.

Nor was it an absolute freedom. The court accepted that parliament could legitimately restrict political communication in certain cases. The question, always, would be whether restrictions on speech were being pursued for a legitimate purpose and, if so, whether an appropriate balance had been struck. Thus in the Australian Capital Television Pty Ltd decision (ACTV), a constitutional challenge to federal regulation of electoral advertising, and in Nationwide, which challenged a provision making it an offence to bring the industrial relations commission into disrepute, the High Court held that each law went too far.

The recognition of the implied freedom was immediately attacked by conservative commentators and academics. “A slide into uncontrolled judicial law-making,” was one description. This critique has continued: “A right with no plausible constitutional text to support it,” offered another academic, more than a decade later. As recently as last year, Justice Simon Steward, a black-letter judge appointed to the High Court by the Morrison government, doubted whether the freedom existed at all. Methodological disagreement about the principle’s application, Steward suggested in a judgement, “may, in my view, justify a reconsideration … of the existence of the implied freedom”.

This was a radical suggestion. Notwithstanding birthing pains and sustained criticism in the aftermath, the implied freedom gained surer footing in a subsequent case, Lange v Australian Broadcasting Corporation. All seven members of the High Court, in a unanimous judgement delivered in mid-1997, endorsed the doctrine. “Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates,” they wrote. It has been constitutional orthodoxy ever since – and looks set to stay that way, notwithstanding Steward’s comments.

 

A robust protection for the human rights of Australians the implied freedom is not. The freedom provides a frail shield only for expression and perhaps, by extension, association. The many other human rights enshrined in international treaties, to which Australia is a signatory, enjoy no protection in domestic law. Despite the enactment of human rights charters in the ACT, Victoria and, most recently, in Queensland, at a federal level Australia remains the only liberal democracy without statutory or constitutional protections for human rights. It might be wondered whether the implied freedom has, inadvertently, stymied progress towards a federal human rights charter.

Notwithstanding a number of attempts – most recently and substantively, the National Human Rights Consultation led by Father Frank Brennan during the Rudd era – the barren landscape for human rights in Australia remains. Current calls from civil society focus on a statutory charter, not constitutional reform. Such a law would be simple enough to enact and would represent a significant step towards ensuring that free speech and other important human rights are at the heart of government laws and decisions.

The Albanese government was elected with a Labor platform commitment to review the case for a federal human rights charter, but there is no indication of when this will occur or what their position will be once the review is complete. Supporters of statutory human rights protections – I am among them – must hope we are not waiting for Godot.

But while the implied freedom is no panacea – litigants making implied freedom arguments have lost more cases than they have won – it has not proved unimportant. The implied freedom has made a significant contribution to Australian democracy. For that we can be grateful, while still demanding more by way of robust protections for our human rights.

Take a spread of successful implied freedom challenges. In Lange, the doctrine reshaped defamation law to provide greater protection for public interest journalism; in Coleman v Power, it was used to narrow laws that criminalised offensive language; in Brown v Tasmania, the High Court invalidated a draconian anti-protest law being used in Tasmania to silence environmental activists; in Unions NSW v New South Wales, first in 2013 and again in 2019, the High Court struck down NSW electoral laws designed to quieten third-party campaigners. A third iteration of the case awaits hearing ahead of the state election next year. In all of these cases, the implied freedom has served as an important check on government overreach.

For better or worse, the darkest fears of conservative critics have not been realised – the High Court has not invalidated legislation left, right and centre for unduly constraining the implied freedom. But the doctrine has, in egregious and important cases, been used to strike down laws that disproportionately restricted the abilities of Australians to communicate with each other. It has also influenced legislative design for the better and ensured parliaments and governments give due consideration to free speech concerns, lest they find themselves before the High Court facing an implied freedom challenge.

 

On its 30th anniversary, unanswered questions remain around the nature, breadth and application of the implied freedom. A battle rages on the current High Court about the appropriate methodology for testing a law’s compliance with the freedom. A majority has adopted a European legal concept, “structured proportionality”; a minority, led most vocally by Justice Stephen Gageler, dislikes the idea of importing a foreign legal concept into a doctrine that is distinctly Australian. It remains to be seen who ultimately wins this methodological battle – two judges in the proportionality camp will soon retire, which could tilt the balance back in Gageler’s favour. But in practice the different approaches have not led to materially different outcomes.

Reconsidered today, the decisions that gave birth to the implied freedom seem almost quaint. The underlying concerns that federal parliament had sought to address in the legislation challenged in ACTV, providing an electoral level playing field by limiting radio and television advertising at election time, verge on archaic in the current era of social media, fake news and ever-increasing money in politics.

It’s an age-old and enduring challenge, to appropriately balance well-intentioned regulatory attempts to address areas of real concern with undue silencing of political debate. As the then chief justice Mason warned in ACTV, “all too often attempts to restrict the freedom in the name of some imagined necessity have tended to stifle public discussion and criticism of government”. The value of the implied freedom is in seeking to carve a middle path – avoiding the absolutism of much US first amendment case law, while ensuring political communication is sufficiently protected.

It seems appropriate, then, to wish the implied freedom of political communication a happy birthday. It survived a turbulent birth, where conservative critics condemned the High Court for judicial activism, to become an accepted and orthodox part of Australian constitutional law. It is by no means perfect, but – for now – it is all we have by way of nationwide legal protection for free speech. Its existence seems worth celebrating. But this anniversary is also a timely reminder that we must continue to advocate for more-robust human rights protections in this country. Necessary, not sufficient – that’s probably the best description of the implied freedom in contemporary Australia.

This article was first published in the print edition of The Saturday Paper on October 1, 2022 as "Implied freedoms".

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