The Delusion of Freedom
Free Speech as a Constitutional Right
J. A. McCreery
Australians do not have freedom of speech.
None would disagree that we are a lucky country – a liberal democracy, a developed economy – we are enlightened, just not ‘that’ liberal or ‘that’ enlightened. The laws you are subject to are not those our Americanised media consumption would have you believe.
The Australian Constitution does not explicitly protect freedom of speech or expression.
Is such restriction damning though, a loophole which future, perhaps corrupt, governments can abuse to secure control via legalism? According to the Australian Law Reform Commission, the government can render speech or expression unlawful in many different contexts, “some limitations on speech have long been recognised by the common law itself, such as obscenity and sedition, defamation, blasphemy, incitement, and passing off.” Would you consider this fair?
If speech is completely free, however utopian the thought is, an immeasurable number of pitfalls are generated. What is to stop fake news? Unbased conspiracy? Or the dispersion of harmful and radical material? A deluge of misinformation and descent could render one’s career, one’s livelihood moot overnight. As Dyson Heydon, high court judge, declared in 2013 “free speech was a noble and idealistic enterprise which has failed, is failing, and will go on failing.”
Clearly, the Australian lawmakers have taken this into consideration and, through the advent of tightly worded legislation, ensured such events cannot take place. Freedom of opinion and expression is what Australian’s hold, it’s free speech that cannot be boiled down to hate speech without consequence.
A helpful analogy, described by Misha Ketchel, makes this clear: we have the right to drive freely on roads, provided we observe limits on speed, places we can park, how we negotiate the roads with others and the amount of alcohol we have consumed. Taking this, it can be understood that one may speak for as long as they like, on whatever they wish and extrapolate as far as they want, as long as it falls within the defined boundaries of the law.
Yet the problems come when the ‘defined’ boundaries become blurred, when “blasphemy, obscenity [or] sedition” become so simply because they contradict the ideologies and beliefs of those in power. Legislation can become blurred and stretched in times of crisis and the High Courts ‘implied freedom of political communication’ could come under duress. Simply put, convention does not precede law and one should not rely on it to protect their civil liberties.
Frequent and transparent discourse must occur on what falls within and without the boundaries of Australian freedoms. The tolerance of democratic societies has a limit and it must be explored. There are behaviors that should be found intolerable and unacceptable, restricted to protect and harmonize society. Some of these are fixed in place and perhaps there are some that will shift and grow into acceptance over time.
Ultimately, as a citizen of Australia you cannot say whatever you wish, free speech does not exist and one can face punishments for uttering mere words. The Australian Government has made a near authoritative yet in the end justifiable choice, a sacrifice of individual freedom which helps build and protect community, self and the media into a healthy and fruitful place, devoid of aggressive deprecation and indecency.
“It is possible to have unlimited freedom of expression — just not in a democracy. If someone can say what they want without any regard or consequence, then they’ve merely reached the top of a dictatorship.” – Misha Ketchell
To assuage one’s mounting fears: Australia is part of the International Covenant on Civil and Political Rights which contains, in articles 19 and 20, the freedom of opinion and expression.