Freedom of Speech in Australia: What Does It Actually Mean?

Marie Odtojan - Freedom of Speech in Australia: What Does It Actually Mean?

Freedom of Expression | Constitutional Protections | Democracy | Rule of Law | Accountability

Understanding Our Rights, Laws and Democracy - Public Legal Education Series

We often hear expressions such as freedom of speech, democracy, the rule of law and the administration of justice.

But what do these terms actually mean? What protections do Australians have, and how do they differ from those in other democratic countries?

Many Australians assume freedom of speech is a constitutional right, much like it is in the United States.

The reality is more complicated.

In this article, freedom of speech and freedom of expression are used interchangeably.

1. Do Australians Have Freedom of Speech?

Yes, Australia has freedom of speech but not in the same way as in the United States.

Unlike the United States, Australia does not have an express constitutional guarantee of general freedom of speech.

Instead, freedom of expression is protected through a combination of:

• The Australian Constitution: An implied freedom of political communication.

• Common law: Principles recognising freedom of expression and requiring clear legislative language before fundamental freedoms are restricted.

• Legislation: Specific statutory protections, including human rights legislation in Victoria, Queensland and the ACT. NSW does not have an equivalent general human rights charter.

• International human rights law: Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party.

  
  

Importantly, international treaties do not automatically create enforceable individual rights under Australian domestic law.

2. Australia vs the United States: What's the Difference?

Australia	United States
No express constitutional right to general freedom of speech	Express protection under the First Amendment
Implied freedom of political communication	Broad constitutional protection of speech
Implied limit on legislative and executive power	Express limit on government power, broadly protecting speech
Political communication may be restricted by constitutionally valid laws	Speech may also be restricted in certain legally recognised circumstances

Both countries recognise freedom of expression as fundamental to democratic society, but their constitutional protections operate differently.

3. What Is Political Communication?

The High Court of Australia has recognised an implied freedom of political communication, arising from the Constitution's system of representative and responsible government.

This is because democracy depends upon people being able to discuss governmental and political matters.

Political communication may include public discussion about:

• Government policies and decisions.

• The conduct of elected representatives and public officials.

• Courts, judicial decisions and the administration of justice.

• Statutory regulators and the exercise of public power.

• Democratic accountability and institutional integrity.

  
  

However, not every statement about a public institution is necessarily protected by the constitutional implication.

The implied freedom is not an unrestricted personal right. It limits governmental power, and its application depends on the law and circumstances involved.

Can Parliament Restrict Political Communication?

Yes, but restrictions must satisfy constitutional requirements.

Broadly, courts consider whether a law burdens political communication, whether its purpose is compatible with Australia's constitutional system of government, and whether the restriction is justified.

These principles have been developed through High Court decisions, including Lange v Australian Broadcasting Corporation and McCloy v New South Wales.

4. Can You Criticise Judges, Courts and Public Institutions?

Yes. Public criticism of courts, judges and public institutions is not inherently unlawful.

Two fundamental democratic principles are relevant:

• Freedom of Speech: Individuals are generally free to discuss, debate and criticise judicial decisions, administrative actions and the performance of public institutions, subject to applicable laws.

• Institutional Accountability: Public confidence in courts and other public institutions depends upon transparency, accountability and the ability to scrutinise the exercise of public power.

  
  

In Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, the Privy Council famously observed: "Justice is not a cloistered virtue."

This reflects the importance of allowing the administration of justice to be examined and discussed publicly.

However, freedom of expression is not absolute and remains subject to applicable laws, including those concerning defamation, contempt of court, suppression and non-publication orders, and other unlawful forms of expression.

There is an important distinction between legitimate criticism of the exercise of public power and conduct that contravenes applicable law.

Criticism does not become unlawful merely because it is strongly expressed or directed at a judicial officer or public institution.

5. What Has the High Court Said?

Several landmark decisions have shaped Australia's constitutional approach.

High Court decision	Key principle or outcome
Australian Capital Television v Commonwealth (1992) 177 CLR 106	Recognised implied freedom of political communication when examining political advertising restrictions
Nationwide News v Wills (1992) 177 CLR 1	Invalidated a law concerning publications bringing the Industrial Relations Commission into disrepute
Lange v ABC (1997) 189 CLR 520	Clarified the constitutional freedom and the test for restrictions
Coleman v Power (2004) 220 CLR 1	Considered insulting words directed at a police officer; the conviction was set aside
McCloy v NSW (2015) 257 CLR 178	Upheld political donation restrictions and developed structured proportionality
Clubb v Edwards (2019) 267 CLR 171	Upheld restrictions on communications within abortion facility safe access zones

These decisions demonstrate how important legal principles develop through judicial interpretation.

In Australia's common law system, published judgments may establish precedents and influence how laws are interpreted and applied in future cases.

This highlights the importance of accuracy, procedural fairness and integrity in judicial records and judgments. Their significance extends beyond individual proceedings to the broader administration of justice.

Related reading: The Integrity of Judicial Records - Why Accuracy and Accountability Matter.

6. Why Does Freedom of Speech Matter?

Freedom of expression is not simply about being able to express personal opinions.

It enables people to exchange ideas, question authority, scrutinise decisions and participate meaningfully in democratic society.

Without the ability to question those entrusted with public power, accountability becomes difficult.

Freedom of expression also carries legal responsibilities. Its protection must be understood alongside the rights of others and the proper administration of justice.

7. The Fundamental Democratic Question

There is an important distinction between recognising freedom of expression as a democratic principle and ensuring that it is effectively protected in practice.

A democratic society depends on the ability of people to question authority, criticise public institutions and raise concerns about the exercise of public power.

The rule of law requires that restrictions on expression have a lawful foundation and comply with applicable constitutional requirements.

The critical question is not merely whether freedom of speech exists in Australia, but whether our laws and institutions adequately protect the freedom to scrutinise those entrusted with authority.

Freedom of expression, democratic accountability and the rule of law are closely connected.

Understanding these principles is an important first step towards meaningful public participation and informed discussion.

Continue the Discussion

This article forms part of Understanding the Rule of Law - Our Rights, Laws and Democracy.

Next topic: What Is the Rule of Law and Why Does It Matter?

Public awareness, informed discussion and critical thinking are essential to understanding our rights, laws and the institutions that govern our democratic society.

Odtojan Bryl Lawyers | Odtojan Bryl Justice Project | Public Legal Education

Disclaimer: This article provides general legal information and commentary for educational and informational purposes only. It does not constitute legal advice.