Freedom of speech in Australia

Unlike the United States of America, Australia has no Constitutional guarantees to ‘free speech’ a la the First Amendment:

Amendment I – Freedom of Religion, Press, Expression. Ratified December 15, 1791. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In fact, what ‘rights’ we do have are derived from the Common Law, a legacy of Empire which American colonists dispensed with after a revolutionary war against the Crown and, eventually, the adoption of the US Constitution and the election of George Washington as President in 1789. By way of historical comparison, 1789 was just one year after the British Empire’s establishment of a penal colony known as ‘New South Wales’. In a year of firsts, the English Crown raised a (very) small army — the Rum Corps — for service in the penal colony; there was established a tent hospital in Parramatta; and Australia’s first ‘bushranger’, John Caesar, appeared.

The earliest bushrangers were convicts [usually minor ‘criminals’ sentenced to transportation] who had escaped from assigned service on government farms [that is, slavery] and resorted to robbery for sustenance. John Caesar, a First Fleet convict, was Australia’s first bushranger. Known as “Black Caesar” [on account of his strength and black skin], he was sentenced [for being a petty thief and pickpocket] at Maidstone, Kent in 1785 to transportation for seven years.

In June 1789, a few months after his arrival in New South Wales, he took to the bush with some food, an iron pot, and a soldier’s musket. He was caught and punished.

Escaping from custody again in July, he took to the bush again, was retaken but again escaped, and a reward was offered for his capture. In 1796 he was shot at Liberty Plains (near Strathfield).

So, whither liberty now, 210 years after the murder of an escaped black convict slave nicknamed “Black Caesar”?

The Department of Immigration & Multicultural Affairs assures loyal Australians that in this society we have five freedoms: “All Australians are entitled to freedom of speech, association, assembly, religion, and movement”. Unfortunately, the Department fails to inform the public that these freedoms have a very shaky basis in Australian (and, arguably, international) law. In short, the Australian Federal Government is, unlike the US Government, perfectly at liberty to ‘make laws abridging the freedom of speech, or of the press’.

In summary:

The Australian Constitution does not have any express provision relating to freedom of speech. In theory, therefore, the Commonwealth Parliament may restrict or censor speech through censorship legislation or other laws, as long as they are otherwise within constitutional power. The Constitution consists mainly of provisions relating to the structure of the Commonwealth Parliament, executive government and the federal judicial system [that is, it’s a fucking trade document cobbled together by Victorian gentlemen in the late 1800s]. There is no list of personal rights or freedoms which may be enforced in the courts. There are however some provisions relating to personal rights such as the right to trial by jury (section 80), and the right to freedom of religion (section 116). Since 1992 decisions of the High Court have indicated that there are implied rights to free speech and communication on matters concerning politics and government, e.g. permitting political advertising during election campaigns. This is known as the ‘implied freedom of political communication’. Issues arising from these decisions include defining when communication is ‘political’ and when the freedom should prevail over competing public interests.

While governments in New Zealand, South Africa and even the United Kingdom have in recent years made steps towards establishing legal protection for speech beyond the implied right to spend millions on government propaganda, the Australian Government — and notably its ‘opposition’, the ALP (Another Liberal Party) — has expressed little or no interest in doing something similar. In fact, the current Government has made it quite clear that it has nothing but contempt for our ‘rights’, a perspective which the ALP shares. In which case, it’s probably worth keeping in mind the words of a US dissident:

“The state can’t give you free speech, and the state can’t take it away. You’re born with it, like your eyes, like your ears. Freedom is something you assume, then you wait for someone to try to take it away. The degree to which you resist is the degree to which you are free…” — Utah Phillips

About @ndy

I live in Melbourne, Australia. I like anarchy. I don't like nazis. I enjoy eating pizza and drinking beer. I barrack for the greatest football team on Earth: Collingwood Magpies. The 2020 premiership's a cakewalk for the good old Collingwood.
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