NSW Does AU Guarantee Freedom of Speech?

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solomani

Active Member
27 February 2017
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Short part: Does AU/NSW guarantee Freedom of Speech and/or Expression similar to the USA?

Long question: So I have been trying to figure out if AU protects freedom of speech/expression and if so, to what degree. But I have come up with different things reading different articles and a couple court cases. It seems to me freedom of speech is guaranteed until it's not - basically, it comes down to the judge determining if speech is free or not if someone decides to take you to court. Is this view correct?

If not I'd love to know more and happily will read whatever is appropriate but I am not a solicitor or lawyer so cases sometimes lose me in their details, which is why I came here to the brain-trust of AU law experts for info.

I had always thought that if it wasn't explicitly made illegal that it was legal in the AU/UK law system but this doesn't seem to be the case.

Thanks all.

P.S. I did search this forum for "Freedom of Speech" and Expression and nothing came up :)
 

Iamthelaw

Well-Known Member
13 September 2016
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No - There is no express freedom of speech within the Constitution - This obviously differs to that of the US and their first amendment. In the ACTV case the High Court held that there is an implied Constitutional right to free speech in regard to government and political affairs (freedom of political communication), based on the representative nature of democracy.

Refer to this page for more information: Freedom of information, opinion and expression | Australian Human Rights Commission
 

solomani

Active Member
27 February 2017
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Thanks for the link. It isn’t straightforward is it! This is my understanding, feel free to correct me:

- Constitutional Protection. Free speech is protected constituently when it is related to politics (even indirectly). This means a citizen can say what they like about policies, politicians, political parties or anything related without fear of prosecution or censure.

- Common Law Protections
. Australians have free speech protections via the common-law system with the restriction that it doesn’t cause "public disorder".

Though what amounts to public disorder is ambiguous (especially when compared to the US restriction of "directly inciting violence" which is more concrete) it seems Australians may say what they like about each other, about religion (or religious figures), about sexuality, about ethnicity, about corporations and anything else under the sun and the onus would be on the court to prove public disorder if a charge was brought against an individual.

Also, the Australian Human Rights Commission has weight in terms of the law? So, what they publish at the link provided is a reliable reference for understanding the related law?
 

Iamthelaw

Well-Known Member
13 September 2016
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794
Thanks for the link. It isn’t straightforward is it! This is my understanding, feel free to correct me:

- Constitutional Protection. Free speech is protected constituently when it is related to politics (even indirectly). This means a citizen can say what they like about policies, politicians, political parties or anything related without fear of prosecution or censure.

- Common Law Protections
. Australians have free speech protections via the common-law system with the restriction that it doesn’t cause "public disorder".

Though what amounts to public disorder is ambiguous (especially when compared to the US restriction of "directly inciting violence" which is more concrete) it seems Australians may say what they like about each other, about religion (or religious figures), about sexuality, about ethnicity, about corporations and anything else under the sun and the onus would be on the court to prove public disorder if a charge was brought against an individual.

Also, the Australian Human Rights Commission has weight in terms of the law? So, what they publish at the link provided is a reliable reference for understanding the related law?
Not as such. The implied freedom is in essence a protection against government prosecution, not a protection against private prosecution. I would suggest reading Lange - The protection is a limitation on law making bodies in the states, not an individual right.
 

solomani

Active Member
27 February 2017
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Reread it. So essentially Australians have no protection when it comes to individual (private) freedom of speech. But this seems odd there must be some kind of legal break otherwise people would be prosecuting each other left and right. What an I missing?
 

Iamthelaw

Well-Known Member
13 September 2016
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Prosecuting? Do you mean for defamation? Because there are 'elements' that must be met. The option to sue for defamation is only available if:

- The material was 'published' (includes written,spoken, posted on the internet or illustrated) to at least one other person;
- The material identifies the person (either directly or indirectly); and
- The material was defamatory.

What is defamatory? Words are defamatory when they convey a meaning “imputation' about a person that lowers the person’s reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the general public.

Then there are of course a number of defences to a claim for defamation including, among others; truth.
 

Rob Legat - SBPL

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To add to Iamthelaw's comments, suing for defamation can also be detrimental. It can be a hard task to prove that damage has been actually caused by the defamation (which is what the court will use to assess the amount of any award). Comparing the potential award against the cost of pursuing the action might leave you out of pocket to a significant extent. Added to that, you also run the risk of getting a costs order against you for the other party's costs.
 
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solomani

Active Member
27 February 2017
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Thanks both. So that makes a bit more sense. Yes, people can prosecute each other for defamation but the cost and odds of success generally make it not worth the effort. So, in summary:

Constitutional protections cover any political speech (direct or indirect) allowing people to say what they want without fear of prosecution. Privately, however, everyone is open to prosecution for, at a minimum, defamation, but the bar is so high legally to prove the point its very difficult to pull off.
 

Rod

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but the bar is so high legally to prove the point its very difficult to pull off

Not a conclusion I'd reach.

Defamation, at least in Victoria, does not require proof of damages to be successful in defamation. It just affects the size of the restitution the other party has to pay.

I believe, but not looked at each state's laws, that uniform defamation laws have been passed in all states.
 

Tim W

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Can we get down to it - what are you wanting to say, that you are being told that you cannot?
 
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