← The hardest concepts in Australian law
In one breath
The Australian Constitution contains no general bill of rights, but the High Court has held that the system of representative government it creates implies a limit on legislative power: laws may not burden communication about government and political matters unless the burden is justified. It is a limit on law-making power, not a personal right to speak, and it does not protect speech as such.
The picture
The window in the wall
Imagine that Parliament is building a wall of laws around a house, and the Constitution requires that certain windows be left in it. Through those windows the voters outside can see what the government is doing and can call to one another about it. Without that view the elections they are asked to hold would mean little. Parliament may build the wall as high as it likes elsewhere. But if a law bricks up a window, it must show a good reason, and that the reason could not be served by a smaller piece of wall.
The window belongs to the house, not to any one person outside. That is why the freedom is not a right to say whatever you like: it is a restriction on the builder. The question is always about the law, not the speaker. Does the law burden political communication in its terms, operation or effect? If so, is its purpose legitimate and compatible with representative government, and is the burden reasonably appropriate and adapted to that purpose?
Where the picture stops working
A window has one shape, but the doctrine is applied in steps that the High Court has refined more than once, so the wording of the final step differs between cases. The picture also hides how wide “political matters” is: the Court has treated the freedom as reaching government and political matters generally, not just election campaigns.
How it really works
- 1Place the rule. It is constitutional. It limits the legislative power of the Commonwealth and of the States, and the executive acting under their laws.
- 2Ask whether the law burdens the freedom. Look at its legal and practical effect on the ability to communicate about government and political matters, whether by prohibition, licence, cost or limits on place and manner.
- 3Ask about purpose. Does the law pursue a legitimate end compatible with the maintenance of the system of representative government?
- 4Ask whether the burden is justified. The Court tests whether the law is reasonably appropriate and adapted to that purpose, using reasoning of a proportionality kind that has developed over the years.
- 5State the result. A law that fails is invalid to that extent. The same freedom shapes the common law, so that defamation law, for example, is developed consistently with it.
Why people get it wrong
- Calling it freedom of speech. It protects communication on government and political matters, not speech generally.
- Treating it as a personal right to be claimed against anyone. It limits laws and government action, not private persons.
- Thinking any burden is fatal. The freedom is not absolute, and a law that serves a legitimate end and fits it well is valid.
- Looking for a list of protected topics. The test is functional and asks how far a subject bears on government.
- Treating it as the American First Amendment. There is no express guarantee here, only an implication from the text and structure.
A worked example
The facts are invented
A State law makes it an offence to display any sign in a public place during the month before a State election, with no exceptions. Priya displays a sign criticising a minister and is charged. The law plainly burdens political communication. Its purposes might be to reduce litter, which is legitimate, but a court would ask whether a total ban on political signs for a month is reasonably appropriate and adapted to that purpose, when rules about where and how signs may be fixed would serve it with far less burden. The law is in serious difficulty.
Change the facts: the law forbids signs on traffic islands, for road safety. The burden is slight and the fit is close, so the law is likely valid. Change them again: a landlord forbids a tenant to display a sign. That is a private act, not a law, and the freedom does not apply.
Try it
Mia is fined under a State law that bans all handbills in a town centre. She argues that the Constitution gives her a personal right to free speech. What is the best description of her argument?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Nationwide News Pty Ltd v Wills, (1992) 177 CLR 1
- Australian Capital Television Pty Ltd v Commonwealth, (1992) 177 CLR 106
- Lange v Australian Broadcasting Corporation, (1997) 189 CLR 520
- Coleman v Power, (2004) 220 CLR 1
Where to go next
Dictionary
More hard concepts in Australia law
- Section 109: when Commonwealth and State laws clash (Constitutional law)
- The separation of judicial power and the Boilermakers principle (Constitutional law)
- The guarantee of acquisition on just terms (Constitutional law)
- The Commonwealth’s heads of power (Constitutional law)
- State and federal courts: Wakim and Kable (Constitutional law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. Australia is a federation: the Commonwealth, the six States and the Territories each make law, and the High Court is the final court for all of it. The common law, by contrast, is one law across the country. Each page says whether the rule is constitutional, federal or common law shared by every jurisdiction, or State-by-State legislation that varies, and flags where the States and Territories differ. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources of your own jurisdiction before relying on any rule.