Freedom of Speech – Does Australia Have It?

By Estephen Bugarin

As a sovereign state, Australia is a party to various international human rights treaties and this article will discuss the facets of the right to freedom of opinion and expression. While there is no explicit clause about freedom of expression in the Australian Constitution, Australia relies on legislation, common law and its commitment to International Conventions. Among the seven-core international human rights treaties Australia is party to,[1] articles 19 & 20 of the International Covenant on Civil and Political Rights (‘ICCPR’) generally provide for the freedom of opinion and expression.

Article 19 of the ICCPR guarantees individuals the right to hold opinions without interference, implying that every individual can freely express their opinions. [2] However, it also acknowledges that the expression of opinion carries ‘special duties and responsibilities’, leading to certain necessary restrictions: [3]

  • For the respect of others’ rights or reputations; and
  • For the protection of national security and public order

Article 20 outlines further restrictions subject to freedom of expression. This includes restriction from the expression of opinion classified as propaganda for war, and expressions that incite discrimination and hatred against national, racial or religious contexts.[4]

These ICCPR provisions align with Australia’s legal framework concerning freedom of speech. Australia’s commitment to these principles is evidenced in legislation like the Racial Discrimination Act 1975 (Cth) (‘Racial Discrimination Act’)[5] and the Anti-Discrimination Act 1977 (NSW) (‘Anti-Discrimination Act’)[6]. These legislations reflect the restrictions international law places on such freedoms.

How does Australia Protect the Freedom of Speech of Individuals and the Implications of Offensive Publication?

Australia employs a systemic approach to handling offensive publication cases, where several elements need to be identified. It resembles the elements of defamation but matters of offensive publication require a different bar to satisfy. The general elements are:

  1. The nature of the imputation;
  2. The mode of publication;
  3. The racial nexus of the imputation;
  4. The potential offensiveness of the publication; and
  5. The degree to which the publication can ‘offend, insult, humiliate, intimidate’.

If a publication exceeds these limits, it may have criminal implications, provided incitement can be demonstrated.

The Racial Discrimination Act details what may constitute offensive behaviour and outlines exceptions associated with such behaviour. [7] The Anti-Discrimination Act supplements this at a State level in NSW, outlining that racial vilification is unlawful and providing a state-specific definition of a ‘public act’. [8] Cases of offensive publication extending beyond racial vilification can be captured under s 80.2 of the Criminal Code Act 1995 (Cth), [9] which specifically addresses advocacy of terrorism. As it is generally difficult to pass the bar set for offensive publication, defamation is the common alternative applicants seek for redress due to their nature of similarity and lower bar to pass.

Legal Implications of Offensive Publication

Seeking redress from offensive publication can be a daunting process due to the lack of a specific, legally binding process detailing remedies or punishment for racial vilification acts. An aggrieved individual general needs to lodge a complaint with the Human Rights and Equal Opportunity Commission (‘HREOC’), which then seeks a conciliation between the applicant and the respondent. [10] However, complaints can only be lodged against a named party, causing difficulties when the offensive publication occurs on social media. In such cases, it becomes increasingly common for plaintiffs to seek recourse via defamation claims. Navigating the complexities of racial vilification and defamation can indeed be challenging, but pursuing a defamation complaint can sometime offer a more successful avenue towards resolution. This is largely because the characteristic of defamation law doesn’t require distinguishing a specific individual and the legally binding nature of redress.

General Defamation Elements

In considering a defamation case, several key elements must be evaluated:

  1. The plaintiff must consider if the case is worth pursuing given the potential for the ‘Streisand effect’, where the act of suing could inadvertently amplify the defamation;[11]
  2. The case must meet a serious harm threshold, demonstrating that the defamation has caused significant damage to the plaintiff’s reputation;[12]
  3. The third element involves determining the imputations or meaning conveyed by the defamatory statement.
  4. The fourth element is the defamatory test asking whether the plaintiff’s reputation has been lowered in the eyes of society as a result of the defamation;
  5. The fifth element questions whether the plaintiff has been reasonably identified in the defamatory material;
  6. When publication is considered, it checks if the defamatory material has been disseminated to a third party.
  7. When seeking redress for defamation, the plaintiff is given liberty of who to sue, if the material has been published under a social media platform or it has been republished;
  8. Finally, a claim of defamation may only be made within the first year of the publication of the defamatory material.

This article is not meant to act as legal advice and serve the purpose of providing academically generalised information regarding the general principles of offensive publication. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Foulsham & Geddes are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.

[1] Attorney General’s Department, Right to Freedom of Opinion and Expression (Web Page).

[2] United Nations Human Rights Office of the High Commissioner, International Covenant on Civil and Political Rights (Web Page).

[3] Ibid 19.

[4] Ibid 20.

[5] Racial Discrimination Act 1975 (Cth) (‘Racial Discrimination Act’).

[6] Anti-Discrimination Act 1977 (NSW) (‘Anti-Discrimination Act’).

[7] Racial Discrimination Act (n 5) ss 18C & 18D.

[8] Anti-Discrimination Act (n 6) ss 20D & 20C.

[9] Criminal Code Act 1995 (Cth) s 80.2

[10] Australian Human Rights Commission, Racial Vilification Law in Australia (Web Page).

[11] Britannica, Streisand Effect (Web Page).

[12] Defamation Act 2005 (NSW) s 10A.