7 ms·

I don't think there's any legal basis for the idea of free speech in Australia.

deleted 7y ago
[deleted]
twelvechairs 7y ago
Yes there is though it's not in the constitution directly its been inferred by the high court https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Righttofreedomofopinionandexpression.aspx https://www.ag.gov.au/RightsAndProtections/HumanRights/Human...
- cormacrelf 7y ago
  It would be almost misleading not to mention that the implied freedom of political communication is very limited and doesn't have even close to the depth and breadth of jurisprudence that 1st Amendment arguments have in the US. The argument at its most extreme that various unauthorised disclosure criminal provisions could be invalid for IFPC reasons is outlined here: https://journals.sagepub.com/doi/abs/10.1177/0067205X1804600301 https://journals.sagepub.com/doi/abs/10.1177/0067205X1804600... (Or as a blog post if you don't have access: https://auspublaw.org/2016/04/public-sector-whistleblowing/ https://auspublaw.org/2016/04/public-sector-whistleblowing/) But it's shaky at best. Who is to say that the nature of Special Intelligence Operations and the restrictions on their existence don't justify having no public interest exceptions to disclosures about them, for example? The paper makes this point accidentally (via a Wotton v Queensland analogy, at 362). I just don't see the current applications as being strong enough, especially where the legitimate object of the legislation is national security.
- cyphar 7y ago
  There isn't. The High Court's decision on political freedom of speech is ridiculously limited in scope and doesn't apply to the vast majority of actions most Aussies would call "free speech". I also want to point out just how much the High Court has been forced to stretch the wording of the constitution in order to grant rights which are "obviously present" in our society: * The amount of decisions which had a basis on "on just terms" had such a massive effect that almost every piece of legislation drafted in the past 50 years has a special provision saying that it should not be interpreted to violate the "on just terms" section of the constitution. * The freedom of political speech comes from the High Court's reading of the preamble of the constitution, and the fact that it mentions Australia as being a representative democracy. They then ruled that in order for a representative democracy to exist you must have freedom of political speech. We're very lucky that our High Court is ruling in favour of the public's freedom rather than against it, because some people might see that as reason to question the legitimacy of the High Court (which would end very badly).
cylinder 7y ago
There's an implied freedom of political speech. The rest can be regulated by law. By the way the way Americans view the constitution as some sort of divinely bestowed natural law document is highly unusual. For example the Australian constitution is literally an act of Parliament.
- SuperNinKenDo 7y ago
  This comment looks like it got voted down, probably because the tone sounds a little patronising to what it characterises as the American view. But nothing it says is to my knowledge inaccurate or even a twisting of facts. The constitution of America is explicitly stated to be a statement of natural law. This view is highly unusual. The Australian constitution IS literally an act of parliament to my understanding. Freedom of speech IS only intimated by the courts and is not explicitly stated in any part of the Australian constitution.
  - sonnyblarney 7y ago
    "The constitution of America is explicitly stated to be a statement of natural law. This view is highly unusual." It's not highly unusual, see my comment below: it's normative. As for 'natural law' - well, the Canadian constitution essentially indicates that our rights are bestowed by the 'Supremacy of God' [1] which is kind of like 'natural law'. [1] https://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-39 https://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-39
    - SuperNinKenDo 7y ago
      Your comment below doesn't demonstrate that constitutions being considered statements of natural law is normative at all. Constitutions far outdate the very concept of natural law, and your comment doesn't contain any evidence that this has become the norm in modern times. I dunno if I accept that the Canadian constitution does or not, it doesn't matter, one other country would not tip the balance.
      - 7y ago

deleted 7y ago

[deleted]

Yes there is though it's not in the constitution directly its been inferred by the high court https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Righttofreedomofopinionandexpression.aspx https://www.ag.gov.au/RightsAndProtections/HumanRights/Human...

cormacrelf 7y ago
It would be almost misleading not to mention that the implied freedom of political communication is very limited and doesn't have even close to the depth and breadth of jurisprudence that 1st Amendment arguments have in the US. The argument at its most extreme that various unauthorised disclosure criminal provisions could be invalid for IFPC reasons is outlined here: https://journals.sagepub.com/doi/abs/10.1177/0067205X1804600301 https://journals.sagepub.com/doi/abs/10.1177/0067205X1804600... (Or as a blog post if you don't have access: https://auspublaw.org/2016/04/public-sector-whistleblowing/ https://auspublaw.org/2016/04/public-sector-whistleblowing/) But it's shaky at best. Who is to say that the nature of Special Intelligence Operations and the restrictions on their existence don't justify having no public interest exceptions to disclosures about them, for example? The paper makes this point accidentally (via a Wotton v Queensland analogy, at 362). I just don't see the current applications as being strong enough, especially where the legitimate object of the legislation is national security.
cyphar 7y ago
There isn't. The High Court's decision on political freedom of speech is ridiculously limited in scope and doesn't apply to the vast majority of actions most Aussies would call "free speech". I also want to point out just how much the High Court has been forced to stretch the wording of the constitution in order to grant rights which are "obviously present" in our society: * The amount of decisions which had a basis on "on just terms" had such a massive effect that almost every piece of legislation drafted in the past 50 years has a special provision saying that it should not be interpreted to violate the "on just terms" section of the constitution. * The freedom of political speech comes from the High Court's reading of the preamble of the constitution, and the fact that it mentions Australia as being a representative democracy. They then ruled that in order for a representative democracy to exist you must have freedom of political speech. We're very lucky that our High Court is ruling in favour of the public's freedom rather than against it, because some people might see that as reason to question the legitimacy of the High Court (which would end very badly).

cylinder 7y ago

There's an implied freedom of political speech. The rest can be regulated by law. By the way the way Americans view the constitution as some sort of divinely bestowed natural law document is highly unusual. For example the Australian constitution is literally an act of Parliament.

SuperNinKenDo 7y ago
This comment looks like it got voted down, probably because the tone sounds a little patronising to what it characterises as the American view. But nothing it says is to my knowledge inaccurate or even a twisting of facts. The constitution of America is explicitly stated to be a statement of natural law. This view is highly unusual. The Australian constitution IS literally an act of parliament to my understanding. Freedom of speech IS only intimated by the courts and is not explicitly stated in any part of the Australian constitution.
- sonnyblarney 7y ago
  "The constitution of America is explicitly stated to be a statement of natural law. This view is highly unusual." It's not highly unusual, see my comment below: it's normative. As for 'natural law' - well, the Canadian constitution essentially indicates that our rights are bestowed by the 'Supremacy of God' [1] which is kind of like 'natural law'. [1] https://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-39 https://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-39
  - SuperNinKenDo 7y ago
    Your comment below doesn't demonstrate that constitutions being considered statements of natural law is normative at all. Constitutions far outdate the very concept of natural law, and your comment doesn't contain any evidence that this has become the norm in modern times. I dunno if I accept that the Canadian constitution does or not, it doesn't matter, one other country would not tip the balance.
    - 7y ago