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WithinAustralian law, there is nofreedom of speech.[Note 1] Instead, theAustralian Constitution implies afreedom of political communication through an interpretation of Sections 7 and 24 of the Constitution.[1]
The implied freedom of political communication serves as anegative right, since it restricts the legislative power of Commonwealth and State parliaments.[2]
TheConstitution of Australia contains no provision expressly guaranteeing freedom of speech, or most other rights comparable to theUnited States Bill of Rights. Many of the delegates to theconstitutional conventions considered that such protections were unnecessary or even insulting toward Australian parliaments, and in some cases were concerned that they would undermine existing laws discriminating againstracial minorities.[3]
In 1942,H. V. Evatt proposed an amendment to the Australian constitution to grant sweeping powers to the federal government for post-war reconstruction, which also would have enshrined theFour Freedoms, including freedom of speech. A pared back version of the amendment which would also only have effect for five years after the end of the war was put to areferendum in 1944. The campaign mostly focused on the powers to be granted to the federal government, and the referendum was defeated.[4]
The following legal cases illustrate the extent to which the implied freedom of political communications does, and does not, apply.
The implied freedom of political communication can also be invoked by state supreme courts, allowing them to invalidate or uphold state legislation, as evidenced below.
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