LAW102 - Analysis of Freedom of Speech and Expression in Australia

This essay provides an overview of freedom of speech in Australia, examining its legal basis, relevance, and limitations. It discusses the absence of an explicit constitutional guarantee and the reliance on common law and international treaties like the ICCPR. The essay analyzes key legal issues, including the protection of political speech and the balance between freedom and restrictions for national security and public order. It compares federal and Victorian law, highlights historical developments, and references important cases like Lange vs Australian Broadcasting Corporation and Levy vs State of Victoria. The essay concludes by advocating for a bill of rights to better protect individual freedom of speech in Australia, ensuring a more robust democratic process. Desklib provides this document and many other study tools to help students excel.

Freedom of Speech in
Australia

Table of Contents
INTRODUCTION ..........................................................................................................................2
TASK ..............................................................................................................................................2
CONCLUSION ...............................................................................................................................6
REFERENCES................................................................................................................................6
INTRODUCTION
Freedom of speech is nothing but the right to freely express the views, ideas and concerns
by the individual. With freedom of speech many questions arise relating to the point that whether
there should be restrictions and who benefits from this freedom. It has been noticed thus that it is
very essential for people to voice their opinion and thus it allows the public and media to
comment and express their dissent if they find anything that is inappropriate or wrong. Despite
the debates on Freedom of speech it is still not protected under the constitution of Australia. It is
the country which does not have a bill of rights where this freedom gets defined(Benson, 2018) .
In Australia, free speech is only a common law that was adopted from the Westminster system.
This essay will cover in detail about the concept of freedom of speech, its legal issue in
Australian country, its relevance to the people of Australia, opinions of different authors on the
issue, all the legislations or bills relating to freedom of speech, sections and famous cases. It
shall also make comparisons between the federal law and Victorian law and also talk about the
historical development of speech.
TASK
Free expression of opinions is an important part of self-expression. Freedom of speech
does not only mean the right to say anything, anytime, anywhere you want. It comes with
responsibilities and restrictions so that it is exercised and used legitimately and with proper care.

It is basically the freedom to seek, receive and impart thoughts, ideas and information. Free
speech is highly misunderstood due to the freedom it gives to the people. In reality, when we talk
about its positives it is the most essential right for people so that they are free to express
themselves without having to fear any type of power or authority while doing so. The key legal
issue that freedom of speech addresses is how it provides protection to people with respect to
freely expressing of their points and also criticize any person, someone or some authority when
required(Cave, 2019) .
With respect to the Australian country, it does not have an explicit freedom of speech
like the other nations that comes from the constitutional or statutory declaration of rights. But
this country only has an exemption for political speech because this is granted protection from
the criminal legal action at the common law system. This implied freedom of political speech
and communication in Australia was recognised in the famous case of Lange vs Australian
Broadcasting Corporation(French, 2019). Australian freedom of speech is not absolute, it has
various responsibilities which if not fulfilled can be restricted stating several grounds. Freedom
of speech has a lot of relevance attached to it, it is an constituent point of rule of law which helps
in ensuring the accountability of the government. The citizens of Australia do not have this
freedom directly by the constitution which makes it necessary that the government in the country
should adapt to the dynamics of the other democracies and enforce it within their system so that
the citizens can enjoy this freedom to speak and express their opinions directly on several
matters. It defines the importance of Freedom of speech in the lives of people because they do
not have it so its value for them increases making it necessary to bring out amendments.
A famous expert in media and free speech who works at the University of Adelaide by
the name of Dr. John Budarick believes that Free speech can be considered by most Australians
as being free from government interference (Gelber, 2019). Free speech has never been
considered as saying whatever you want top say and getting protected from the consequences
that might arise from what you speak. Australia does have a law that relates to free speech but
the drawback of them is that they are all concerned with limitations and protections. Australia is
the only western country without the bill of rights which is why public criticism of officials can
have negative consequences for the people. Australia guarantees freedom of speech by being a
party to the seven core international treaties that relate to the human rights. Among them, the
International Convent on Civil and Political Rights (ICCPR) gives the right to freedom of

opinion and expression that is contained in its Article 19 and Article 20. This freedom of
opinion within it gives the citizens of Australia to hold a belief without the interference,
exceptions and restrictions. Whereas the freedom of expression can be in the written form or in
oral form but it is quite complicated because it comes with limitations, it states that there is right
to say whatever the individual wants which includes giving opinions, advertising, displaying and
even protesting but within limits(Hardy and Williams, 2019) . It is thus good for the citizens that
it is not absolute in nature because in its extreme form it can become a negative freedom.
Freedom of speech not only benefits the people but also the certain social groups, the white
people and the government because it comes with limitations which is why it can be restricted
when it infringes the work and policies of the Australian government.
Freedom of speech is important because it is the base of a democracy and Australia being
a mixed form of government, it includes both a representative democracy and a constitutional
monarchy which is why there is a need for it in this country. When the citizens cannot speak
freely it implies that there are restrictions on the liberties of the people. Freedom of speech can
help in the productivity of the Australian government because it can make changes in its policies
when people have the freedom to express opposing beliefs. Levy vs State of Victoria is a famous
case that relates to the Freedom of speech. In this case, the High court of Australia considered to
the Right to free speech as a part of the Australian Constitution. It was stated that freedom of
communication with respect to Government matters and political issue are an indispensable part
of the representative government system(Hardy and Williams, 2021) .
To better understand the value of freedom of speech let us draw out a comparison
between the federal law and Victorian law with respect to the Freedom of speech in both the
law systems. With respect to the Federal law that is followed in United States, Freedom of
speech and Expression is restricted in contexts that differ in time, place and manner. Except on
this fact, this freedom is strongly protected from the restrictions of the government by the First
Amendment that was done to the United States Constitution. In respect of Federal law, freedom
of speech means that there is free expression of opinions publicly without interference,
censorship or restraint by the government. Its definition encompasses the decision making
mindset of what to speak and what not to speak. This constitutional right of free speech only
prevents government restrictions on speech, and not the restrictions that are imposed by any
private individual or business unless there are reasons that they are acting on the behalf of some

government. This freedom of speech also provides protection with respect to the right to receive
information. With respect to the Victorian law that is followed by the Australian government,
freedom of speech is not an explicit right guaranteed by the constitution of that country rather it
is protected by the government as it being a part of International treaties on Human rights.
Victorian law is not codified and thus it draws out its freedom of speech and expression from the
International Covenant and Charter of Human rights and responsibilities(Howie, 2018) . Only the
right to political speech is constitutionally protected under this type of law because it largely
depends on the free exchange of political communications. There are restrictions and limitations
placed on the free speech on several grounds for the protection of public order. Thus, Victorian
law includes the examining of common law that restricts free speech in areas of obscenity, libel,
government secrets, etc. whereas Federal law's free speech is not absolute because governmental
restrictions can be placed on it.
Freedom of speech at common law is evident in Australian country(Wolfe, 2019). There
has been historical developments in free speech with respect to the changes in time, due to the
reason that people started recognizing their rights in relation to this freedom of speech and
expression so that they can form opinions and can express their ideas in respect of anything. Free
speech hence is no longer a residual liberty but has developed as a principle that has its own
independent weight. The points that have led to its development are the indigenous
constitutional law which relates to high court's derivation of freedom of political communication
and the emergence of common law principle of legality. Freedom of speech was believed to be
included in the constitutional discourse in the year 1992 when the High court stated that there is
implied right to freedom of political communication. The constitution does not protect a personal
right rather this freedom is a type of restraint on the Commonwealth's exercising of legislative
power. Australian government became a party to ICCPR in 1980 but it was only after 1992 that it
recognized the importance of the articles 19 and 20 that give freedom of speech and expression
to the citizens due to which they can form opinions and express themselves because of the fact
that there is lack of availability of a constitutional law on free speech(Nash, Gorman-Murray
and Browne, 2021).
It is clear from detailed study of Australian freedom of speech that the country does value
free speech but it only provides that right in respect of political matters by facilitating freedom of
political speech. But to support an individual's right to speak on matters and issues that are

important to them, there is a need for reform that could bring a bill of rights which can guarantee
freedom of speech and expression to individuals on personal level as well because of the
importance that this topic holds with it. To ensure the effective performance of the government
of Australia for upholding its democratic nature of constitutional system, there is a requirement
for the people of a legislation that can provide protection to the individuals so that they can
engage in discussions and communicate without any fear.
CONCLUSION
It can be concluded from the above essay that freedom of speech is considered as the part
of freedom of expression which basically means that the individuals have the right to form
opinions and express themselves, their ideas in whatever way they wish to. But it is not absolute
and has restrictions and the situations when it can be restricted range from protection of rights of
other people as well as national security. Australia does not have an explicit bill that relates to
Freedom of speech, it rather is a party to the International human right treaties where under the
Article 19 and 20 of ICCPR, freedom of opinion and expression is granted to its citizens. It
showcases the importance of free speech to the people so that they can freely express what they
feel without having to fear the authorities. There are also restrictions place on this freedom so
that it is not used in the way that threatens the security of the nation.
REFERENCES
Benson, I.T., 2018. Hate Speech Law in Australia: The Nature of Language and the Nature of
the State. In Forum Prawnicze (p. 33).
Cave, D., 2019. Australia May Well Be the Worldʼs Most Secretive Democracy.
French, R., 2019. Report of the independent review of freedom of speech in Australian higher
education providers.
Gelber, K., 2019. The precarious protection of free speech in Australia: the Banerji
case. Australian Journal of Human Rights, 25(3), pp.511-519.
Hardy, K. and Williams, G., 2019. Free speech and counter-terrorism in Australia. In Extremism,
Free Speech and Counter-Terrorism Law and Policy (pp. 172-189). Routledge.
Hardy, K. and Williams, G., 2021. Press Freedom in Australia's Constitutional System. Can. J.
Comp. & Contemp. L., 7, p.222.
Howie, E., 2018. Protecting the human right to freedom of expression in international
law. International journal of speech-language pathology, 20(1), pp.12-15.

Nash, C.J., Gorman-Murray, A. and Browne, K., 2021. Geographies of intransigence: freedom
of speech and heteroactivist resistances in Canada, Great Britain and Australia. Social &
Cultural Geography, 22(7), pp.979-999.
Wolfe, C., 2019. Online trolls, journalism and the freedom of speech: Are the bullies taking
over?. Ethical Space: The International Journal of Communication Ethics, 16(1), pp.11-
21.