Free or not?

Books routinely banned, publications arbitrarily removed from libraries, radio and television broadcasters monitored by bureaucrats, web sites covertly blocked, digital media prohibited, booksellers raided by police, artworks confiscated from galleries, individuals prosecuted for showing films, and authors subjected to courtroom interrogations.

Germany in the 1930's? Russia in the 1950's? South Africa in the 1980's? Libya 2011? No, that is Australia, now.

There is no absolute right to freedom of speech in Australia. Commonwealth, State and Territory Parliaments may, and routinely do, restrict speech through censorship and other means.

In 1942 an Australian Constitutional Convention recommended amendments to the Australian Constitution to prevent the Commonwealth or a State passing laws which curtailed freedom of speech or of the press. The proposal was not included in a subsequent referendum in 1944, when other constitutional amendments went to a vote.

In 1948 the United Nations General Assembly, of which Australia is a member, adopted the Universal Declaration of Human Rights, "a common standard of achievement for all peoples and all nations".

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (Article 19)

Article 19 of the 1966 United Nations International Covenant on Civil and Political Rights, to which Australia is a signatory, says (in part)

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

To incorporate declarations and covenants into Australian law, Australian States and Territories and the Commonwealth must pass Acts of Parliament enabling them. No Australian government has implemented the free speech provisions of the United Nations declarations and covenants and therefore they are not enforceable by Australian courts.

Since 1992 Australia's High Court has protected some freedom to discuss some political matters. The Court has consistently ruled that freedom of communication is not expressly stated in the Constitution, but that given the nature of representative government, and Australia's political history before Federation, it could not be doubted that Constitutional provisions for free elections implied a right to free speech on political matters affecting the outcome of elections.

The Australian High Court has consistently affirmed, since 1992, that the freedom of communication implied in the constitutional requirements to hold free and fair elections is not absolute, but is limited to communications necessary for the effective operation of representative and responsible government.

…sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors (but) those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.

Until the Australian Constitution is amended, or Territory, State or Federal parliaments act to provide it, free speech in Australia remains an ongoing negotiation between its peoples, parliaments and courts, rather than an absolute right.