Free speech in Australia still has limits

AusHCA The Australian High Court demonstrated that freedom of speech in Australia continues to be controlled for reasons of “good rule and government”. Two recent decisions split the Court on the scope of free speech in Australia and fettered free speech remains.

The first case, Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3, was an appeal brought by the South Australian Attorney General that confirmed that religious free speech could be fettered by local council controls. The City of Adelaide Council wanted to stop a group of street preachers from preaching in the local streets and made a local by-law preventing (loud and offensive) preaching without permission.

The street preachers challenged the Council’s authority to make the order in the first place, but the High Court rejected that and confirmed the Council acted within its powers to make the by-law for the “good rule and government of the area, and for the convenience, comfort and safety of its inhabitants.”  It was possible for the council to protect and control its streets.

The second challenge that the by-law inhibited free speech was also rejected by the High Court using a test in the Lange case:

“The parties were on common ground as to the test to be applied in determining whether the freedom was infringed by By-law No 4. The test adopted by this Court in Lange v Australian Broadcasting Corporation[153], as modified in Coleman v Power[154], involves two questions, the terms of which are settled[155]:

  1. Does the law, in its terms, operation or effect, effectively burden freedom of communication about government or political matters?
  2. If the law effectively burdens that freedom, is the law nevertheless reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government, and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people?”

The Court decided that whilst the by-law put a burden on free speech it was not so disproportionate as to prevent it.

Next was a case, Monis v The Queen [2013] HCA 4, that involved criminal charges against Mr Monis for sending offensive letters to families whose children were killed on active service in Afghanistan.

Mr Monis, was charged under section 471.12 of the Commonwealth Criminal Code for using a postal service “in a way … that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.” Mr Monis believed that this section infringed his rights to freedom of political communications.

The decision split the court 3:3 with the Judges looking at different sides of the same coin. Half the judges held that the criminal code was compatible with a responsible and representative system of government; the other half did not. Because the court was split, the Judiciary Act, 1903 came into play as a legislative casting vote and affirmed the result from the lower court. The outcome is that section 471.12 stands and made it a criminal offense to send such offensive letters.

The High Court missed an opportunity to decide clearly what the law should be regarding free speech and what that means for Australians. The High Court at least has remained consistent by supporting the implied right to political free speech doctrine established in Theophanous and the manner in which it is applied as determined in Lange. I would love to have read judgments from Justice Kirby on these cases had he still been on the Court.

Pegging free speech to responsible and representative governmental aims still comes with the danger that the goals posts about what exactly that means can be nuanced. There still is room to push these boundaries either way, even in favour of Government limiting the implied free speech right further. It’s only a short jump from burden to prevention by burden. For now, we can be sure that the vibe from the High Court is that street preaching loudly without permission and sending grossly offensive letters have no protection under free speech law.

Published by Brett

Brett is an experienced lawyer and business executive who focuses on commercial outcomes. He has worked across three sectors in England & Australia advising and leading initiatives in digital, media and technology

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