Q&A: What are the limits to free speech?

(File: AAP) Source: AAP

The Australian High Court’s split decision over a Muslim cleric accused of sending hate mail to families of dead Australian soldiers shows a deep division over the issue of free speech in Australia, says legal expert Adrienne Stone of the University of Melbourne.

The Australian High Court's split decision over a Muslim cleric accused of sending hate mail to families of dead Australian soldiers shows a deep division over the issue of free speech in Australia, says legal expert Adrienne Stone of the University of Melbourne.


Many Australians assume freedom of speech is a fundamental right, and therefore something the law protects against. First of all, how does the law define freedom of speech here in Australia?

Adrienne Stone: Well, in Australia when we look at our constitution, our constitution protects what we call freedom of political communication, rather than freedom of speech generally. So it protects that kind of communication that is necessary to make sure that our institutions of representative government at the federal level function properly, so that we can have proper elections and so we can properly comment on the role that ministers are playing and have a proper referendum procedure. So we tend to use in Australian constitution law, the term freedom of political communication rather than freedom of speech. So that's the first thing I'd say. And the second thing I'd say is, it's not absolute, it's a protection but sometimes the protection is balanced off as other kinds of interests arrive.

And how does Australian law deal with the concept given there's no direct legislation, are we talking about common law and precedence?

AS: Actually we're talking about an unwritten constitutional rule. So it's actually quite a potentially very strong doctrine. It can be invoked to actually rule invalid commonwealth and state legislation and it can be used to alter the common law. But it's a doctrine that was developed by the courts and it's unwritten.

Critics argue the racial discrimination act leaves room for misinterpretation or misuse in what might be construed as mild cases.

AS: What I would say first of all is that the extent to which the constitution has anything to say about the racial vilification elements of the racial discrimination act it would only be in circumstances where the speech that was involved was not only racially vilifying but also was in some way political; about some matter of politics. And it is true that there is an offence that is created by the racial discrimination act. It's actually subject to a very extensive set of defences. I think that if it was ever challenged in the High Court, it's difficult to predict what the High Court would say about it. There's a reasonable chance that it would actually be upheld as a valid law. I don't think anyone could be certain about that, especially in the light of recent decisions.

What are the limits to free speech here in Australia?

AS: Okay, so the High Court has said that it will allow, what it calls reasonable limitations, on freedoms of political communication, that are consistent with the rest of our democracy, the rest of our democratic government. So the thoughts of things for example that might allow limitations of freedom of communication might be that it might be necessary to preserve the safety of protestors in certain circumstances. There's a well-known case that arose out of Victoria, where the High Court upheld limitation that was held on protesters who were protesting against duck hunting. Because the High Court accepted the argument that it was necessary to physically protect them from the possibility of being accidentally shot. So these are the kinds of limitations. There are some laws of defamation permitted, in order to protect reputation, so it's not permissible to say wildly inaccurate things about members of parliament or other people involved in political life that you haven't checked properly and haven't made reasonable efforts to demonstrate that they are true. Those are some of the instances and sorts of reasons why freedom of communications might be limited.

What kind of precedent does yesterday's split decision over a Muslim cleric, accused of sending hate mail to families of dead Australian soldiers, set?

AS: Well it's a very unusual case, precisely because it doesn't really set any precedent. It actually leaves the law very finely balanced. Very unusually, only six judges heard this case and even more unusually, those six judges very divided exactly equally. So three of them took the view that the law under which this Muslim cleric had been charged was invalid because it unreasonably limited freedom of communication. And three took the view that the law was in fact a reasonable limitation on freedom of expression. Now to break the tie we have a rule that when the High Court splits evenly, the lower court's decision is upheld, and so because of that rule, the lower court's decision was actually to uphold the law and regard it as a reasonable limitation on freedom of political communication. But what yesterday's decision showed, is that the High Court is deeply divided over that issue and I think it will probably have to be revisited.

Source SBS

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