Australia: We should be wary of restrictions on freedom of speech

We tend to believe we have a right to freedom of speech, that we can say what we like in public as long as it doesn't breach the laws of defamation and doesn't insult or humiliate people. However, it is a common misconception that Australians have a legal right to free speech.

Ongoing debate about Section 18C of the Racial Discrimination Act

There has already been a push by some members of the government to get rid of Section 18C of the Racial Discrimination Act, which makes it unlawful to say something publicly that is reasonably likely to "offend, insult, humiliate or intimidate" a person because of their race, colour or ethnic origin.

Supporters of the abolition of this law argued it restricted free speech. However, they are not protesting at public servants being banned from criticising the government.

Guidelines for public servants participating in public or political debate on social media

New guidelines for federal government employees state that public servants can't make "harsh or extreme" comments about the government or government policy on social media. (See Making public comment on social media: A guide for employees.)

It includes comments a public servant may make on their own personal social media sites outside of office hours, and comments that are unrelated to the employee's area of work.

They can't criticise MPs or policy. Even "liking" "sharing", posting an emoji or sending a private email which is critical of the government could get public servants into trouble.

The guidelines say that government employees have the right to participate in public and political debate, but this right is not unlimited. They can't say anything that may lead "a reasonable person to conclude that they cannot serve the government of the day impartially and professionally".

Implied right to freedom of speech identified in High Court cases

We do not have a Bill of Rights or rights to free speech guaranteed under the Australian constitution. Instead we have an implied right to free speech that developed from a series of court cases which were decided in the High Court.

In 1948 Australia signed the Universal Declaration of Human Rights adopted by the United Nations, which said that everyone has the right to freedom of opinion and expression. In 1980 Australia signed the International Covenant on Civil and Political Rights, which provides the right to freedom of expression. These broadly define what free speech is, but all attempts for Australia to adopt a Bill of Rights have failed.

In these circumstances, it was left to the High Court to determine the limits of free speech by ruling in individual cases.

In 1992, in a landmark case, Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd & New South Wales v Commonwealth, the High Court ruled that there was an implied freedom of political communication in the constitution. Later rulings such as Lange v Australian Broadcasting Corporation determined that it was a limited freedom.

Prohibition of public comment on security or intelligence operations

There have been increasing restrictions on what can be said publicly about actions that are deemed by the Attorney-General to relate to security or intelligence operations. Once so declared, it is a crime for anyone to comment publicly on these operations.

There is no public interest exemption under this restriction, making it possible to cover up actions that could embarrass a government.

Free speech is vital to a healthy democracy. We should be wary of restrictions imposed on political discourse, as well as the right to protest or expose government activities that are illegal or corrupt.

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